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THE  QUESTION 

OF  THE 

Original  Party. 

IN  THE  CASE  OF 

Dr.  BRIGGS. 

» 

Argument  prepared  for  the  Synod  of  New  York, 
October,  1892,  on  a  Complaint  of  114  Ministers 
and  Elders  Against  the  Presbytery 
of  New  York, 

by 

PROF.  FRANCIS  BROWN,  D.  D. 


NEW  YORK : 
1892. 


THE  QUESTION 


OF  THE 


Original  Party, 


IN  THE  CASE  OF 


Dr.  BRIGGS. 


Argument  prepared  for  the  Synod  of  New  York, 
October,  1892,  on  a  Complaint  of  114  Ministers 
and  Elders  Against  the  Presbytery 
of  New  York, 


by 


PROF.  FRANCIS  BROWN,  D.  D. 


NEW  YORK: 
1892. 


ft 


PRESS  OF  “THE  DRY  GOODS  ECONOMIST.” 


78-80  Walker  Street,  N.  Y. 


COMPLAINT  TO  THE  SYNOD  OF  NEW  YORK 
AGAINST  THE  PRESBYTERY  OF  NEW  YORK 
FOR  ITS  DECISION  OF  THE  QUESTION  OF 
THE  ORIGINAL  PARTY. 

Complaint  is  hereby  made  before  the  Synod  of  New  York 
by  the  persons  whose  names  are  appended  below,  being  all  of 
them  persons  subject  to  and  submitting  to  the  jurisdiction  of 
the  Presbytery  of  New  York,  in  accordance  with  Sections  83 
and  86  of  the  Revised  Dook  of  Discipline,  against  the  action 
of  the  Presbytery  of  New  York,  November  4,  1891,  in  sustain¬ 
ing  by  a  vote  of  64  to  57  the  ruling  of  the  moderator,  as 
follows : 

1.  That  the  Committee  which  prepared  charges  against  Dr. 
Briggs,  (presented  to  Presbytery,  October  5,  1891)  was  a  Com¬ 
mittee  of  Prosecution  under  Section  11  of  the  Revised  Book 
of  Discipline. 

2.  That  this  Committee  was  in  the  house  on  the  day  on 
which  the  citation  was  returnable  (November  4,  1891,  as  afore¬ 
said)  as  an  original  party. 

3.  That  the  Committee,  as  an  original  party,  was  virtually 
and  practically  independent  of  the  Presbytery. 

Against  this  action  complaint  is  made  for  the  following 
reasons : 

1.  The  records  of  Presbytery  do  not  show  that  the  Com¬ 
mittee  was  appointed  as  a  Committee  of  Prosecution  under 
Section  11  of  the  Revised  Book  of  Discipline. 

2.  Section  10  of  the  Revised  Book  of  Discipline  declares 
that  “  When  the  prosecution  is  initiated  by  a  judicatory,  the 
Presbyterian  Church  in  the  United  States  of  America  shall  be 
the  prosecutor,  and  an  original  party.”  But  the  Presbyterian 
Church  in  the  United  States  of  America  wras  represented  in 


4 


4 

the  house  by  the  Presbytery  of  New  York  itself  and  not  by 
a  Committee  of  the  Presbytery. 

3.  Every  committee  appointed  by  Presbytery  is  subject  to 
the  control  of  Presbytery,  otherwise  the  creature  is  greater 
than  the  body  creating  it,  the  sovereignty  of  Presbytery  over 
its  members,  its  committees,  and  all  the  interests  committed  to 
it  by  the  laws  of  the  Church,  is  seriously  impaired,  and  an 
undue  power  is  placed  in  the  hands  of  a  few  persons. 

4.  It  was  therefore  competent  for  the  Presbytery  to  discharge 
the  Committee  on  dismissing  the  case  against  Dr.  Briggs.  But 
a  motion  to  this  effect  was  ruled  out  of  order  by  the  moderator, 
on  the  ground  of  the  Presbytery’s  action  in  sustaining  him,  as 
cited  above  (of.  also  Complaint  2). 

5.  The  Committee  being  a  creature  of  Presbytery,  has  no 
right  to  appeal  from  the  decision  of  Presbytery  in  voting  by  a 
large  majority  (94  to  39)  to  dismiss  the  aforesaid  case.  Yet  this 
the  action  of  Presbytery  in  sustaining  the  ruling  of  the  modera¬ 
tor,  as  above,  permitted  them  to  do. 

6.  By  this  appeal  of  the  Committee,  the  Presbytery  is 
placed  in  the  absurd  position  of  being  compelled  to  defend  its 
own  action  in  dismissing  a  case,  not  against  the  complaint  of 
any  individual,  nor  against  the  appeal  of  one  who  has  suffered 
personal  detriment  by  a  judicial  decision,  but  against  a  Com¬ 
mittee  which  was  appointed  by  and  derives  all  its  authority 
from  the  very  body  against  whose  judgment  it  now  proposes 
to  maintain  its  opinion.  This  anomalous  situation  results  from 
the  action  of  the  Presbytery  in  sustaining  the  moderator  as 
above. 

For  these  reasons,  due  notice  of  complaint  having  been  given 
to  the  stated  clerk  of  the  Presbytery  of  New  York,  within  ten 
days  after  the  action  complained  of,  according  to  Section  84  of 
the  Pevised  Book  of  Discipline,  Complaint  is  hereby  made  in 
due  form  to  the  next  higher  judicatory,  being  the  Synod  of 
New  York,  against  the  action  of  the  Presbytery  of  New  York 
above  described,  and  the  Synod  is  most  respectfully  and 
earnestly  requested  to  entertain  this  Complaint  and  to  take 
therein  such  action  as  shall  in  its  judgment  appear  wise  and 


\\\  w 


5 


likely  to  promote  good  order,  justice,  and  the  peace,  purity,  and 
welfare  of  the  Church  of  Christ. 

[Signed] 


1  Francis  Brown,* 

2  Thos.  S.  Hastings, 

3  Geo.  L.  Prentiss, 

4  John  R.  Paxton, 

5  George  Alexander, 

6  Jas.  H.  Mcllvaine, 

7  Wilton  Merle  Smith, 

8  H.  T.  McEwen, 

9  Stealy  B.  Rossiter, 

10  Edward  L.  Clark, 

11  E.  W.  Hitchcock, 

12  Chas.  R.  Gillett, 

13  Anson  P.  Atterbury, 

14  John  Balcom  Shaw, 

15  W.  R.  Harshaw, 

16  A.  W.  Halsey, 

17  D.  H.  Overton, 

18  Jas.  E.  Sentz, 

19  George  C.  Lay, 

Robert  T.  B.  Easton, 

Lester  W.  Hough, 

20  William  T.  Elsing, 

21  W.  M.  Martin, 

22  Herbert  Ford, 

23  Andrew  Shiland, 

24  Joseph  A.  Saxton, 

H.  M.  Humphrey, 

William  N.  Crane, 

Horace  J.  Fairchild, 

25  Clarence  P.  Leggett, 

George  R.  Aitkin, 

26  Samuel  Macauley  Jackson, 
William  E.  Dodge, 

William  W.  Hoppin, 

Henry  D.  Noyes, 

J.  C.  Cady, 

W.  H.  H.  Moore, 

S.  J.  Storrs, 

D.  Willis  James, 

John  Crosby  Brown, 
Samuel  Q.  Brown, 


27  Thomas  S.  Strong, 
Clark  Brooks, 

28  William  A.  Wheelock, 
_ —  29  Henry  Van  Dyke, 

30  Charles  L.  Thompson, 
Arthur  Mitchell, 

31  Philip  Schaff, 

32  C.  H.  Parkhurst, 

.  C.  A.  Briggs, 

33  George  L.  Spining, 


34  James  H.  Hoadley, 


/ 


,35  Marvin  R.  Vincent, 

36  Joseph  R.  Kerr, 

37  Henry  M.  Field, 

E.  M.  Kingsley, 

Elisha  M.  Carpenter, 

38  Vincent  Pisek, 

39  Daniel  E.  Lorenz, 

40  John  H.  Edwards, 

41  Theron  G.  Strong, 

42  Charles  H.  Woodbury. 
Theron  E.  Parsons, 

43  A.  G.  Ruliffson, 

44  Lewis  W.  Barney, 
Walter  P.  Beers, 

45  Henry  B.  Chapin, 
Francis  P.  Freeman, 
Joseph  Gillet, 

James  Denholm, 

46  W.  W.  Atterbury, 
Henry  R.  Elliot, 
Antonio  Arrighi, 

47  George  S.  Payson, 

D.  J.  McMillan, 

Henry  Day, 

48  George  S.  Webster, 
Chas.  O.  Kimball, 
Alfred  E.  Marling, 

49  Henry  Q.  Hawley, 

50  D.  Stuart  Dodge, 

51  Geo.  J.  Mingins, 


*  The  numbers  ind'cate  those  who  were  present  and  voting  when  the  decision  was  made. 
The  to  al  number  of  signers  is  114. 


6 


52  Sidney  F.  Wilcox, 

Wm.  A.  Ewing, 

■ — '  Robert  Jaffray, 

53  Isaac  M.  Dyckman, 

Allan  Hay, 

54  Robert  Gentle, 

Henry  M.  MacCracken  (as  to 
the  request), 

55  Jesse  F.  Forbes  (as  to  re¬ 

quest), 

56  F.  H.  Marling, 

Chas.  M.  Earle, 

George  C  alder, 

^  Thomas  Bond, 

57  Cleveland  H.  Dodge, 

58  Samuel  Reeve, 

59  M.  P.  Brown, 


'"v  Albert  Ledoux, 
Daniel  J.  Holden, 
Titus  B.  Meigs, 

Wm.  Rice, 

60  A.  C.  Armstrong, 

61  Erskine  White, 

62  Bartholomew  Kriisi, 

63  Henry  Breunich, 
James  Robertson, 
Frank  Kunzmann, 

64  John  Stewart, 

John  Cepek, 

65  Fred.  N.  Rutan, 
Charles  H.  Trask, 

66  J.  P.  Lestrade, 
Hamilton  Odell, 

67  A.  M.  Mitchell. 


ARGUMENT  PREPARED  FOR  THE  SYNOD  OF 

NEW  YORK. 

[Part  I.  of  this  argument  was  delivered,  with  some  omissions, 
Oct.  20,  1892,  before  the  Synod  of  New  York  at  Albany,  in 
opposition  to  the  pending  motion  to  adopt  the  report  of  the 
majority  of  the  Judicial  Committee  of  the  Synod.  This  report 

said : 

u  In  the  matter  of  Judicial  Case  IN  o.  3  the  committee  find 
the  complaint  to  be  in  order,  but  recommend  that  it  is  inexpe¬ 
dient  to  take  action  at  the  present  time,  for  the  reason  that  the 
highest  court  has  taken  action  covering  the  points  at  issue,  and 
the  lower  court  is  now  in  process  under  it.” 

It  had  been  the  intention  of  the  speaker  to  make  this  argu¬ 
ment,  as  a  complaint,  on  the  question  of  entertainment.  But 
this  question  was  not  formally  reached.  He  made  it,  there¬ 
fore,  simply  as  a  member  of  the  Synod.  A  substitute  for  the 
majority  report  of  the  Judicial  Committee  was  offered  on  the 
following  day,  and  finally  prevailed.  It  is  as  follows : 

“  In  the  matter  of  Judicial  [Case  No.  3  the  committee  find  the 
Complaint  to  be  in  order,  but  recommend  that  it  is  inexpedient  to  take 
action  at  the  present  time,  for  the  following  reasons  : 

pqrst_ The  case,  through  the  action  of  the  General  Assembly  and 
of  the  Presbytery  of  New  York,  is  again  before  the  Presbytery,  and 
the  complainants  may  there  have  their  remedy  in  their  own  hands. 

Second— In  case  the  remedy  there  be  found  insufficient,  they  will 
afterward  have  opportunity,  by  appeal  or  complaint,  to  bring  the  case 
again  before  Synod.” 

By  adopting  this  substitute  the  Synod  declined,  in  effect,  to 
hear  discussion  of  the  merits  of  the  Complaint.  Part  II.  of  the 
argument  here  printed  was  therefore  not  delivered.] 

I. 

Mr.  Moderator ,  Fathers  and  Brethren: — The  main  Com¬ 
plaint  on  which  the  Judicial  Committee  now  reports,  while  it 
has  respect  to  a  particular  action  of  the  Presbytery  of  New 


8 


York,  involves  a  Constitutional  question  of  wide  importance* 
This  question  has  arisen  in  connection  with  the  case  of  the 
Presbyterian  Church  in  the  United  States  of  America  against 
the  Bev.  Charles  A.  Briggs,  D.  D.  It  cannot  be  discussed  at 
the  present  time  without  frequent  reference  to  certain  aspects 
of  that  case.  To  the  merits  of  that  case,  however,  it  has  no 
manner  of  relation.  Upon  the  merits  of  that  case  the  grounds 
.adduced  in  support  of  the  Complaint  have  no  bearing. 
Whether  or  not  the  errors  alleged  against  Dr.  Briggs  are  real 
errors,  whether  or  not  he  holds  opinions  at  variance  with  the 
Scriptures  and  the  Confession  of  Faith,  is  not  now  to  be  dis¬ 
cussed.  These  114  Complainants  do  notjand  can  not  ask  of  you 
any  expression  of  judgment  on  these  points.  No  evidence  is 
at  hand  that  they  themselves  are  all  agreed  in  regard  to  it. 
Upon  the  issues  involved  in  the  Complaint  they  are  agreed, 
and  upon  these  issues  they  ask  your  concurrence  with  them. 
The  interpretation  of  the  Constitution  of  our  Church  that  con¬ 
cerns  us  now  is  one  affecting  every  minister  and  elder  and 
private  church  member.  It  is  proper,  therefore,  to  urge  you 
to  consider  the  representation  of  the  Complainants  as  a  matter 
of  constitutional  law,  and  to  determine  its  issues  in  the  spirit 
of  constitutional  liberty. 

As  the  Complaint  sets  forth,  the  propositions  affirmed  by  the 
Moderator  of  the  Yew  York  Presbytery,  November  4,  1891,  in 
a  single  ruling,  and  sustained  on  appeal  by  the  narrow  majority 
of  64  to  57  in  one  and  the  same  vote  or  action  of  the  Presby¬ 
tery,  being  the  action  respecting  which  Complaint  is  now  made, 
were  three  in  number,  as  follows : 

“  1.  That  the  Committee  which  prepared  charges  against 
Dr.  Briggs  (presented  to  Presbytery  October  5,  1891)  was  a 
Committee  of  Prosecution  under  section  11  of  the  Devised 
Book  of  Discipline. 

u  2.  That  this  Committee  was  in  the  house  on  the  day  on 
which  the  citation  was  returnable  (November  4,  1891,  as  afore¬ 
said)  as  an  original  party. 

a  3.  That  the  Committee,  as  an  original  party,  was  virtually 
and  practically  independent  of  the  Presbytery.” 


A.  THE  ACTION  OF  THE  GENEEAL  ASSEMBLY  OF 
1892  NO  BAE  TO  THE  ENTEETAINMENT  OF 
THIS  COMPLAINT  BY  THE  SYNOD. 

Now  a  preliminary  objection  arises  in  the  minds  of  some. 
The  Committee,  whose  existence  and  functions  are  involved  in 
the  Complaint,  has,  in  disregard  of  this  Complaint,  exercised  the 
power  which  the  action  complained  of  affirmed  it  to  possess, 
has  appealed  from  the  decision  of  Presbytery  in  dismissing  the 
case  against  Dr.  Briggs,  not  to  this  body,  but  over  your  head  to 
the  General  Assembly,  and  the  General  Assembly  has  enter¬ 
tained  and  sustained  the  appeal.  This  is  matter  of  public 
knowledge,  and  is  officially  before  the  Synod  in  the  records  of 
the  Presbytery  of  New  York  and  the  published  Minutes  of  the 
General  Assembly  of  1892. 

THE  QUESTION 

that  arises  is  this :  Since,  if  the  position  of  the  Complain¬ 
ants  be  correct,  the  Committee  had  no  existence  or  func¬ 
tion  apart  from  the  action  of  the  Presbytery  of  New  York, 
and  no  right  of  appeal  against  a  decision  of  the  Presby¬ 
tery,  does  not  the  action  of  the  General  Assembly  in  entertain¬ 
ing  the  appeal  finally  settle  the  standing  of  the  Committee  in 
a  sense  adverse  to  the  belief  of  the  Complainants,  thereby 
removing  the  Complaint  from  the  jurisdiction  of  this  Synod,  as 
a  matter  already  disposed  of  finally,  by  the  decision  of  the 
higher  court  ? 

We  urge  that  this  question  should  be  answered  in  the  nega¬ 
tive,  for  such  reasons  as  the  following : 

1.  Because  the  question i  was  not  formally  and  directly 
brought  before  the  General  Assembly.  The  decision  respecting 
which  Complaint  is  now  made  was  not  a  final  judgment  in  a 
judicial  case  ;  it  was  therefore  not  subject  to  Appeal,  which,  by 
our  Book  of  Discipline,  §  91,  is  permitted  only  from  such  a 
judgment.  Those  who  felt  aggrieved  by  the  decision  had  no 


10 


other  resort  than  Complaint,  but  Complaint,  according  to  §  83, 
must  be  made  to  the  next  superior  judicatory,  which  in  the 
present  case  was  not  the  Assembly,  but  the  Synod.  Complaint 
was,  at  the  time  of  the  Assembly’s  action,  pending  before  this 
Synod,  where,  alone,  the  matter  could  be  legally  and  properly 
adjudicated.  The  question  not  having  been  raised  before  the  As¬ 
sembly,  no  action  taken  by  the  Assembly  in  the  circumstances 
can  deprive  the  Synod,  the  only  Court  before  which  the 
minority  could  bring  their  contention,  from  exercising  its  un¬ 
trammeled  jurisdiction  in  the  matter. 

2.  Because  the  Assembly  did  not  pass  upon  the  matter  except 
by  indirection .  The  Assembly  did,  indeed,  entertain  and  sus¬ 
tain  an  appeal,  purporting  to  come  from  a  u  Committee  of 
Prosecution.”  and  did  to  that  extent  and  in  that  way  recognize 
the  Committee  as  such.  That  is  to  say,  an  appeal  being  pre¬ 
sented,  and  found  in  order,  and  no  question  being  raised  as  to 
the  competence  of  the  appellants,  the  Assembly  assumed  that 
they  were  competent,  and  proceeded  accordingly.  There  was 
&  primer  facie  case.  The  appellants  had  been  recognized  by  the 
Presbytery,  and  the  action  of  the  Presbytery  had  not  as  yet 
been  reviewed.  The  Assembly  did  not  decide  that  they  were 
competent,  because  the  Assembly  was  not  asked,  and  could 
not  legally  be  asked,  to  so  decide.  In  default  of  objection,  the 
Assembly  took  it  for  granted,  in  its  action,  that  the  appellant 
had  a  right  to  appeal.  There  was  a  distinct  avoidance  of 
the  constitutional  question  which  was  concerned  with  the  As¬ 
sembly’s  decision.  Permit  me  to  call  attention  to  the  official 

record  of  the  Assembly’s  action  : 

(a)  “  The  Judicial  Committee  presented  its  Eeport  in  the 
case  of  the  Presbyterian  Church  in  the  U.  S.  A.  vs.  Rev. 
Charles  A.  Briggs,  D.D.,  which  was  accepted,  as  follows: 

« The  Judicial  Committee  respectfully  reports  that  it  has 
carefully  considered  the  documents  submitted  to  it  in  this  case, 
and  adopted  the  following  resolutions  : 

“  1.  That,  in  the  opinion  of  this  Commitee,  the  appeal  taken 
by  the  Presbyterian  Church  in  the  United  States  of  America, 
an  original  party,  represented  by  the  1  Committee  of  Prosecu¬ 
tion,’  appointed  under  Section  11  of  the  Book  of  Discipline, 


11 

has  been  taken  from  the  final  judgment  of  the  Presbytery  in 
dismissing  the  case  ;  and  that  the  said  Committee  had  the  right 
to  take  this  appeal  representing  the  said  original  party. 

“  2.  That  it  finds  that  the  notice  of  the  appeal  has  been 
given,  and  that  the  appeal,  specifications  of  error,  and  record 
have  been  filed  in  accordance  with  Sections  96  and  97  of  the 
Book  of  Dicipline  and  the  appeal  is  in  order. 

“  3.  That,  in  the  judgment  of  the  Committee,  the  appeal 
should  be  entertained,  and  a  time  set  apart  for  the  hearing  of 
the  case. 

“  In  view  of  these  considerations,  the  Committee  reports  that 
the  appeal  is  in  order,  and  that  the  General  Assembly  should  pro¬ 
ceed,  in  accordance  with  the  provisions  of  Section  99  of  the 
Book  of  Discipline,  by  causing  the  judgment  appealed  from, 
the  notice  of  appeal,  the  appeal,  and  the  specifications  of  the 
errors  alleged,  to  be  read ;  then  to  hear  the  appellant  by  the 
Committee  of  Prosecution ;  then  the  defendant  in  person  or  by 
his  counsel;  then  the  appellant  by  the  Committee  of  Prosecu¬ 
tion  in  reply,  upon  the  question  i  whether  the  appeal  shall  be 
entertained.’  ”  (Minutes,  1892,  p.  90.) 

Upon  this  report  the  following  action  was  taken : 

“  Resolved ,  That  so  much  of  the  Report  of  the  J udicial  Com¬ 
mittee  as  relates  to  the  appeal  being  found  in  order  be  adopt¬ 
ed.”  (Minutes,  1892,  p.  118.) 

And  further : 

“It  was  Resolved ,  That  the  vote  on  entertaining  the  appeal 
be  now  taken  without  debate.” 

Again : 

“  This  part  of  the  majority  Report  was  then  adopted,  carry¬ 
ing  in  the  affirmative  the  question  of  the  entertainment  of  the 
Appeal.”  (Minutes,  1892,  p.  119.) 

It  thus  appears  that  the  Assembly  voted  to  adopt  the  re¬ 
port  of  the  Judicial  Committee  in  so  far  as  it  declared  the  ap¬ 
peal  to  be  in  order,  and  also  voted  to  entertain  the  appeal,  but 
took  no  action  whatever  with  reference  to  the  1st  Resolution 
adopted  by  the  majority  of  the  Judicial  Committee,  which  re¬ 
lates  to  the  standing  of  the  appellants.  Some  have  supposed 
that  the  Assembly’s  vote  finding  the  Appeal  in  order  included 


12 


this  1st  Resolution.  But  the  opinion  is  erroneous.  The  Book 
of  Discipline  defines,  in  section  99,  precisely  what  is  meant  by 
an  appeal’s  being  in  order,  as  follows : 

“  When  due  notice  of  an  appeal  has  been  given,  and  the 
appeal  and  the  specifications  of  the  errors  alleged  have  been 
tiled  in  due  time,  the  appeal  shall  be  considered  in  order.” 

The  questions  answered  in  determining  whether  an  appeal 
be  “in  order”  are  thus  purely  formal  questions.  The  compe¬ 
tence  of  the  appellants  is  not  involved  in  answering  them. 

It  follows  that  the  “  Summary  of  Acts  and  Deliverances  ” 
(Minutes,  1892,  p.  838)  is  in  error  in  referring  to  this  action 
under  the  heading :  “  Prosecution,  Committee  of,  has  right  of 
appeal  in  a  judicial  case,  as  representing  an  original  party.” 
This  part  of  the  book  of  course  does  not  form  part  of  the  official 
proceedings  of  the  Assembly. 

It  may  be  that  the  Assembly  was  illogical  in  determining  the 
main  question  before  it  without  passing  upon  the  preliminary 
and  fundamental  question ;  but  if  confusion  result,  the  respon¬ 
sibility  lies  with  those  who  have  created  the  illogical  and  anom¬ 
alous  situation.  The  action  of  the  Assembly  can  be  no  bar  to 
the  adjudication  by  the  Synod,  the  only  competent  court,  of  the 
fundamental  question  upon  which  the  Assembly  indicated  its 
opinion  only  by  inference  and  indirection. 

3.  Because  the  right  of  prosecuting  this  Complaint  was  ex¬ 
pressly  reserved  before  the  Assembly  by  the  defendant  in  the  case. 

It  is  well  known  that  the  defendant  in  the  case,  who  is  one 
of  the  complainants,  was  placed  in  the  position  of  being  obliged 
to  defend  the  Presbytery  of  New  York,  and  as  in  effect  counsel 
for  the  -Presbytery,  to  oppose  the  entertainment  of  the  appeal, 
and  also  to  argue  against  the  proposal  to  sustain  it.  In  the  course 
of  his  remarks  he  distinctly  refers  to  this  Complaint,  and  says : 

“  This  Complaint  involves  the  very  existence  of  this  commit¬ 
tee  which  has  appealed,  whether  they  were  appointed  as  a  pros¬ 
ecuting  committee,  whether  they  are  an  original  party,  whether 
they  have  any  right  to  act  independent  of  the  Presbytery  and 
against  the  Presbytery.  If  the  Synod  should  decide  any  of 
these  questions  in  accordance  with  the  views  of  the  com¬ 
plainants,  the  appellants  would  have  no  present  right  of  appeal, 
and  could  not  therefore  appear  before  you  as  appellants  at  this 


13 


time.  The  defendant  does  not  raise  those  objections  here  be¬ 
cause  they  go  before  the  Synod  of  New  York  for  its  decision, 
and  he  reserves  the  right  with  others,  his  co-complainants,  to 
argue  these  questions  before  the  Synod  or  New  York.”  ( Case 
against  Professor  Briggs ,  pp.  94  and  95.) 

And  again,  after  the  Assembly  had  decided  to  entertain  the 
appeal,  the  defendant  said : — “You  have  decided  to  entertain 
the  appeal  despite  my  protest  and  reservation  of  rights.  It  is 
now  necessary  for  me,  before  going  a  step  further,  to  say  that 
I  do  not  consent  to  your  decision.  I  do  not  waive  my  rights, 
or  the  rights  of  my  co-complainants,  to  prosecute  our  Complaint 
before  the  Synod  of  New  York,  in  order  that  it  may  be  deter¬ 
mined  there  whether  the  appellants  were  appointed  as  a  Com¬ 
mittee  of  Prosecution  by  the  Presbytery  of  New  York,  whether 
they  are  an  original  party,  and  whether  they  can  act  as  appel¬ 
lants  against  the  decision  of  the  Presbytery  to  dismiss  the  case. 
We  reserve  this  right.  The  appellee  does  not  waive  his  right 
to  seek  any  relief  that  may  seem  to  be  proper  against  your  de¬ 
cision  to  entertain  the  appeal.  He  enters  upon  his  response  to 
the  objections  of  the  appellants  with  all  these  reservations  of 
right.”  ( Case  aainst  Professor  Briggs,  p.  125). 

Against  this  reservation  of  rights  no  action  of  the  Assembly 
was  taken,  and,  so  far  as  appears,  no  protest  or  objection  was 
heard.  It  is  thus  evident  that  the  Assembly  understood  that 
this  Complaint  was  to  be  prosecuted,  and  refrained  from  mak¬ 
ing  any  objection  to  such  prosecution,  and  that,  therefore,  the 
action  which  the  Assembly  did  take  cannot  operate  as  a  barrier 
to  action  on  the  Complaint  by  this  Synod. 

4.  Because  the  General  Assembly  cannot  deprive  the  Synod 
of  functions  especially  assigned  to  it  by  the  Constitution . 
Even  if  the  Assembly  had  been  less  cautious  than  it  was  in  the 
matter  of  direct  affirmation  of  the  competence  of  the  appel¬ 
lants,  the  Synod  would  not  have  been  debarred  from  enter¬ 
taining  this  Complaint.  No  power,  not  even  that  of  the  highest 
judicatory  of  the  church,  can  destroy  constitutional  rights,  as 
long:  as  the  constitution  itself  remains  unchanged.  Among  the 


CONSTITUTIONAL  RIGHTS  OF  THE  SYNOD, 


with  their  corresponding  duties,  are  these  (Form  of  Gov’t,  xi.,  §4)r 
The  Synod  has  power  to  receive  and  issue  all  appeals  regu- 


u 


14 


larly  brought  up  from  the  Presbyteries,  provided  that,  in  the 
trial  of  judicial  cases,  the  Synod  shall  have  power  to  act  by 
commission  *  *  *  *  ;  to  decide  on  all  references  made 

to  them  ;  its  decisions  on  appeals,  complaints  and  references 
which  do  not  affect  the  doctrine  or  constitution  of  the  church 
being  final ;  to  review  the  records  of  presbyteries,  and  approve 
or  censure  them  ;  to  redress  whatever  has  been  done  by  pres¬ 
byteries  contrary  to  order ;  to  take  effectual  care  that  pres¬ 
byteries  observe  the  constitution  of  the  church,”  etc.  These 
functions  it  has  a  right  to  exercise.  !No  action  of  the  As¬ 
sembly  can  be  so  construed  as  to  deprive  it  of  that  right.  The 
Synod,  being  authorized,  for  example,  to  decide  on  “  appeals, 
complaints  and  references”,  and  a  to  take  effectual  care  that 
presbyteries  observe  the  constitution  of  the  church,”  no  action 
of  another  court  can  stand  in  the  way  of  its  deciding  on  an 
appeal,  or  a  complaint,  or  a  reference  brought  before  it  in  an 
orderly  way,  and  of  it  using  its  own  unbiased  judgment  in  its 
measures  to  secure  observance  of  the  constitution  by  the  pres¬ 
byteries.  Of  course  the  Assembly  may  overrule  its  decision 
on  further  appeal  or  complaint,  but  the  Synod  stands  between 
the  Assembly  and  the  presbyteries,  and  has  a  right  to  stand 
there  ;  the  constitution  sets  it  there  ;  and  it  has  the  first  consid¬ 
eration  of  these  matters  as  they  come  up  from  the  presbyteries. 
They  can  reach  the  Assembly  only  through  the  Synod. 
Action  of  the  Assembly  cannot  be  so  determined  as  to  cripple 
the  Synod  in  the  exercise  of  these  its  ordinary  and  constitu¬ 
tional  rights. 

5.  Because  no  action  of  the  Assembly  can  destroy  the  right  of 

Complaint . 

THE  EIGHT  OF  COMPLAINT 

is  bound  up  with  the  existence  of  free,  as  contrasted  with 
tyrannical,  government.  It  is  a  right  expressly  reserved  to  any 
and  every  person  in  the  Church.  It  cannot  be  taken  away  with¬ 
out  revolution.  But  it  would  be  taken  away,  or,  what  is  prac¬ 
tically  the  same  thing,  made  of  absolutely  no  effect,  if  this 
body  were  estopped  from  considering  on  its  merits,  and  with¬ 
out  reference  to  the  action  of  any  other  court,  the  Complaint 
now  presented. 


15 


The  complainants,  it  is  true,  labor  under  the  disadvantage  of 
complaining  against  action  whose  validity  the  higher  court 
has  appeared  to  assume.  To  this  extent  the  action  of  the  high¬ 
er  court  has  tended  to  impair  their  free  right  of  complaint.  By 
what  it  appeared  to  assume  it  has  created  a  certain  presumption 
against  the  complainants,  tending  to  prejudice  their  case  before 
the  court.  But  it  is  respectfully  submitted  that  this  is  in  no 
way  or  shape  through  fault  of  theirs,  and  that  they  ought  not  to 
be  made  to  suffer  for  it.  They  have  done  everything  that  in  them 
lay,  to  bring  the  matter  before  the  Synod.  The  difficulty,  such  as 
it  is,  arises  from  the  action  of  persons  over  whom  your  com¬ 
plainants  have  no  control,  and  for  whose  actions  they  are  not 
responsible.  These  persons,  knowing  that  notice  of  this  Com¬ 
plaint  to  Synod  had  been  given,  appealed,  on  the  basis  of  a 
claim  that  they  formed  a  Committee  of  Prosecution,  and  were 
an  original  party,  competent  to  appeal.  After  giving  verbal 
notice  of  an  appeal  to  Synod,  they  took  the  unfortunate  step  of 
changing  the  court  of  their  appeal  to  the  Assembly.  I  have 
called  the  step  unfortunate,  but  it  wras  worse  than  that.  It 
might  be  called  ungracious,  if  that  were  not  too  mild  a 
word.  It  was  of  questionable  legality  and  unquestionable  im¬ 
propriety,  contriving  to  anticipate,  as  it  did,  by  a  demand  for 
action  in  its  favor,  by  the  Assembly,  the  discussion  before  the 
Synod,  where  alone  it  could  be  discussed,  of  the  very  question, 
whether  it  had  any  right  to  ask  the  Assembly  for  anything — 
whether  it  had  any  existence  or  standing  before  the  Assembly. 
Without  this  contrivance,  on  their  part,  their  appeal,  if  they 
had  chose  to  make  one,  would  be  now  here,  and  all  parts  of  the 
case  would  be  plainly  before  this  Synod,  where  they  of  right  be¬ 
long,  for  adjudication.  Will  the  Synod  of  New  York  permit  a 
body  of  complainants  which, to  say  the  least,  is  reputable,  to  pract- 
tically  lose  their  right  of  Complaint  through  the  instrumentality 
of  action  on  the  part  of  other  persons  which  has  roughly  ig¬ 
nored  the  rights  of  complainants,  and  has  ignored,  in  so  doing, 
the  claims  of  the  Synod  ? 

B.  The  Synod  has  a  duty  in  the  Case. 

But  more  than  this  : — Not  only  is  the  Synod  at  perfect  lib¬ 
erty,  undeterred  by  any  action  of  the  higher  court,  to  pass 


16 


upon  the  Complaint,  but  the  Synod  has  a  duty  in  the  matter 
which  it  cannot  evade. 

It  has  the  duty  involved  in  the  powers  conferred  by  the 
Form  of  Government,  Chap.  XI ,  §  4,  particularly  that  of  taking 
“  effectual  care  that  presbyteries  observe  the  constitution  of  the 
church.” 

It  has  the  duty  involved  in  the  right  of  Complaint,  for 
the  right  of  Complaint  u  to  the  next  superior  judicatory”  is 
rendered  of  no  effect  unless  that  judicatory  is  bound  to  consider, 
on  its  merits,  a  Complaint  presented  in  due  form  and  supported 
by  “  sufficient  reasons”.  (Book  of  Discipline,  §  87.) 

These  duties  always  rest  upon  it.  In  the  present  case  there 
are  additional  considerations  compelling  the  Synod  to  entertain 
the  Complaint, — considerations  arising  out  of  the  relation  of 
Synod  to  both  the  higher  and  the  lower  court. 

The  especial  duty  of  the  Synod  at  the  present  time  arising  out 
of  its  relation  to  the  higher  court,  is  to  see  to  it  that  no  action 
of  the  higher  court  be  allowed  to  deprive,  or  gain  the  appear¬ 
ance  of  depriving,  the  Synod  of  any  of  its  constitutional  rights. 
I  do  not  desire  to  appeal  to  local  pride  or  stir  up  feelings  of 
jealousy  and  resentment.  The  Synod  is  bound  to  pay  all  due 
respect  to  the  Assembly  and  scrupulously  to  avoid  infringement 
upon  the  rights  of  the  Assembly  and  criticism  of  the  Assembly 
for  action  within  those  rights.  But  if,  in  these  unpre¬ 
cedented  circumstances,  if  when  the  General  Assembly  has 
entertained  and  sustained  an  appeal  from  one  of  the 
presbyteries  of  this  Synod,  wdiereby  the  Synod  has  been 
deprived  of  the  opportunity,  for  which  the  Book  of  Discipline 
and  the  time-honored  usage  of  the  church  alike  provide, — the 
opportunity  of  first  adjudicating  upon  any  appeal  from  the  ac¬ 
tion  of  presbytery, — if  when  the  General  Assembly  has  not 
merely  entertained  and  sustained  such  an  appeal,  but  done  so  in 
the  full  knowledge  that  the  competence  of  the  appellants  had 
not  yet  been  passed  upon,  but  was  awaiting  the  action  of  this 
court, — the  Synod  should  be  deterred  from  fully  examining  and 
adjudicating  that  question  of  the  competence  of  the  appellants, 
brought  before  it  in  proper  form,  the  Synod  would  be  unfaith¬ 
ful  to  its  constitutional  obligations.  It  would  practically 
acknowledge  that  a  Synod  possesses  no  rights  which  the  higher 


17 


court  is  bound  to  respect.  It  would  practically  affirm  that  a 
Synod  exercises  its  functions  not  under  a  constitution,  and 
according  thereto,  but  at  the  pleasure  of  the  General  Assembly. 
It  would  strike  a  deadly  blow  at  constitutional  liberty  within 
our  church,  and  leave  the  way  open  to  centralization  and  usur¬ 
pation.  I  am  anxious,  in  all  calmness,  but  in  all  seriousness, — 
not  to  persuade  you  to  exhibit  narrow  or  petty  feelings,  but — 
to  urge  you,  by  your  action  on  the  matter  before  you,  to  do 
what  lies  in  you  to  restore  and  maintain  that  just  and  delicate 
balance  of  responsibilities  and  powers  distributed  among  the 
different  courts  of  our  church  which  recent  proceedings  have 
threatened  if  not  actually  impaired. 

I  shall  not  take  the  time  to  adduce  all  the  grounds  underly¬ 
ing  these  statements,  because  I  can  refer  you  to  the  powerful 
argument  of  the  defendant  in  this  case,  in  which,  representing 
the  appellee  before  the  General  Assembly  of  1892,  he  defended 
clearly  and  energetically,  not  so  much  himself  and  his  Presby¬ 
tery,'  as  the  rights  of  this  Synod.  With  this  argument  you 
are  familiar.  I  dwell  here  upon  two  points  only. 

1.  That  “  the  Complaint  to  Synod  (the  one  now  before  you),, 
signed  by  more  than  one-third  of  those  who  were  present  and 
voting  in  the  Presbytery,  acts  as  a  stay  until  the  Synod  decides 
whether  the  committee  has  a  right  to  exist,  and  therefore  a  right 
of  appeal  ”  (Case  against  Professor  Briggs,  p.  99).  That  is  to 
say,  although  the  Presbytery  decided  that  the  committee  was  a 
Committee  of  Prosecution,  and  had  virtual  and  practical  inde¬ 
pendence,  the  Committee  had  no  constitutional  right  to 
exert  an  independence  by  appealing  against  the  Presbytery’s 
vote  to  dismiss  the  case,  because  the  complaint  against  the  deci¬ 
sion  of  the  Presbytery  as  to  the  standing  and  competence  of 
the  committee  was  signed  by  a  sufficient  number  of  presbyters 
to  act  as  a  stay.  There  has  been  some  misunderstanding  at  this 
point.  A  few  words  seem  called  for. 

The  law,  as  laid  down  in  the  Book  of  Discipline,  §  85,  is  as 
follows : 

“  Whenever  a  complaint  in  cases  non-judicial  is  entered 
against  the  decision  of  a  judicatory  signed  by  at  least  one-third 
of  the  members  recorded  as  present  when  the  action  was  taken, 


18 


the  execution  of  such  decision  shall  be  stayed  until  the  final 
issue  of  the  case  by  the  superior  judicatory.’5 

This  law  was  applicable  to  the  case  in  hand ;  the  action 
against  which  complaint  was  entered  was  not  a  judicial  decision, 
hut  a  vote  to  sustain  the  Moderator ;  it  was  signed  by  not 
merely  one-third  of  the  members  recorded  as  present  when  the 
action  was  taken,  hut  by  more  than  a  majority  of  them.  It 
was  therefore  a  legal  stay,  and  the  appellants,  by  acting  on  the 
decision  of  Presbytery,  and  pressing  the  appeal  from  the  vote 
of  dismissal,  violated  the  Constitution.  For  this  offence 
there  is  no  redress  except  such  as  may  be  secured  through 
the  entertainment  by  the  Synod  of  your  complainants’  repre¬ 
sentation. 

The  attention  of  the  General  Assembly  was  expressly  called 
to  this  provision  of  the  law  by  the  defendant  in  the  case,  in  his 
argument  in  behalf  of  the  Presbytery  against  the  entertain¬ 
ment  of  the  appeal.  I  am  desirous,  as  I  have  already  said,  of 
speaking  with  all  possible  respect  of  the  Assembly.  There 
is  reason  to  think  that  this  action  was  largely  determined  by 
assertions  on  the  floor  of  the  Assembly,  which,  if  they  had 
been  correct,  would  have  deprived  the  citation  from  the  Book, 
just  read,  of  all  pertinence.  It  was  affirmed  by  one  of  the 
appellants,  that  since  most  of  the  names  were  attached  to  the 
complaint  after  ten  days  had  elapsed  from  the  time  of  the 
action  complained  of,  the  fact  of  their  appearance  there  had 
no  significance,  and  could  not  operate  as  a  stay.  This  state¬ 
ment  sounded  plausible,  and  doubtless  persuaded  many.  It 
was,  however,  without  foundation.  If  ignored  the  distinction 
which  the  Book  of  Discipline,  §§  84,  85,  carefully  makes  be¬ 
tween  the  Notice  of  Complaint  and  the  Complaint  itself.  The 
former,  the  written  Notice  of  Complaint,  must  be  lodged  with 
the  stated  Clerk  of  the  Judiciary  complained  against  within  ten 
days  after  the  action  complained  of.  No  provision  in  the  Book 
of  Discipline  relates  to  the  numbers  of  the  names  attached  to 
the  Notice  of  Complaint.  The  requirement  concerning  the 
other  document,  the  Complaint,  is  that  it  shall  be  lodged  with  the 
stated  Clerk  of  the  Superior  Judicatory  before  the  close  of  the 
second  day  of  the  next  ensuing  meeting  of  that  judicatory. 
It  is  the  Complaint,  and  not  the  Notice  of  Complaint,  which 


19 


operates  as  a  stay  when  the  names  of  one-third  of  the  mem¬ 
bers  recorded  as  present  at  the  time  of  the  action  complained 
of  are  appended  thereto.  As  a  matter  of  fact,  in  the  present 
case  the  Notice  of  Complaint  was  signed  by  yonr  complainant 
explicitly  “  in  behalf  of  himself  and  others  agreeing  with 
him.”  The  requirements  of  the  law  of  stay  would  not  have 
been  satisfied  if  the  names  of  one-third  the  Presbytery  had 
been  appended  thereto.  They  might  have  been  so  appended, 
but  they  would  have  no  effect  as  a  stay.  It  would  have  been 
necessary  to  append  them  to  the  Complaint  also,  which  was 
actually  done.  But  the  place  in  which  the  Complaint  is  to  be 
found  is  a  matter  of  absolute  and  entire  indifference  as  far  as 
the  law  is  concerned,  until  the  second  day  of  the  next  meeting 
of  the  judicatory  to  which  complaint  is  made.  There  is  no  ten- 
day  limit  in  any  way  applicable  to  the  Complaint — the  document 
that  must  bear  the  names — that  it  may  operate  as  a  stay,  and 
no  requirement  that  the  names  shall  all  appear  on  both  the 
Notice  of  Complaint  and  the  Complaint  itself. 

Therefore,  the  Complaint  being  abundantly  signed,  and  the 
Assembly  being  duly  informed  that  it  was  abundantly  signed, 
and  the  Complaint  being  at  that  very  time  in  the  hands  of  the 
Stated  Clerk  of  this  Synod,  and  its  receipt  attested  by  him,  it 
was  able  to  operate,  and  should  have  operated,  as  a  stay. 

Not  only,  then,  cannot  the  fact  that  the  General  Assembly 
disregarded  the  stay,  and  took  action  which  the  Complaint 
would  have  obstructed,  be  a  reason  why  the  Synod  should  fail 
to  consider  impartially,  and  as  a  fresh  matter,  the  Complaint 
now  presented,  especially  in  view  of  the  probability  that  the 
Assembly  was  misled  by  the  plausible  but  unsound  argument 
of  the  appellants,  but,  more  than  this,  present  action  on  the  part 
of  this  Synod  affords  the  only  possible  redress  for  the  wrong 
done  by  failure  to  obey  the  law  of  stay,  and  the  only  means 
now  left  of  vindicating  that  law. 

2.  The  other  point  to  which  I  call  particular  attention  relates 
to  the  nature  of  the  decision  appealed  from.  Appeal  to  the 
General  Assembly  from  the  action  of  the  Presbytery  in  dis¬ 
missing  the  case  against  Dr.  Briggs  was  (a)  illegal  because  no 


20 


final  judgment  was  given  in  the  ease.  Section  94  of  the  Re¬ 
vised  Book  of  Discipline  reads  as  follows : 

“  An  Appeal  is  the  removal  of  a  judicial  case,  by  a  written  repre¬ 
sentation,  from  an  inferior  to  a  superior  judicatory  ;  and  may  be 
taken,  by  either  of  the  original  parties,  from  the  final  judgment  of 
the  lower  judicatory.  These  parties  shall  be  called  Appellant  and 
Appellee.” 

The  inquiry  that  is  at  once  suggested  is  whether  the  action 
of  the  Presbytery  in  the  case  of  Dr.  Briggs  is  a  “  final  judg¬ 
ment  ”  in  the  sense  of  the  Book  of  Discipline.  It  was  appar¬ 
ently  assumed  by  the  appellants  that  this  was  the  fact.  They 
say,  on  the  cover  and  title  page  of  their  pamphlet :  “  Appeal 
to  the  General  Assembly  from  the  Decision  and  Final  Judg¬ 
ment  of  the  Presbytery  of  New  York,  Dismissing  the  Case  ;  ” 
and  on  page  8  :  “  the  said  Presbytery  made  and  entered  on  its 
records  its  decision  and  its  final  judgment  in  the  said  case.” 
And  of  course,  if  it  were  not  so,  if  the  decision  of  the  Presby¬ 
tery  to  dismiss  the  case  be  not  a  “final  judgment,”  in  the  sense 
of  the  Book  of  Discipline,  Section  94,  the  appeal  wTould  fall  at 
once.  We  cannot,  therefore,  expect  to  find  any  hesitancy  at 
this  point  on  the  part  of  the  appellants.  But  just  as  little  can 
we  leave  to  the  exigencies  of  their  situation  the  determining 
voice.  It  is  certainly  conceivable  that  the  Book  of  Discipline, 
Section  94,  intends  by  its  “final  judgment”  any  action  by 
which  the  consideration  of  a  judicial  case  is  terminated  in  the 
lower  judicatory.  But  it  is  also  conceivable  that  the  term  has 
here  some  specific  and  technical  sense,  which  a  careful  reading 
of  the  Book  of  Discipline  will  disclose.  If  this  should  prove 
to  be  the  case,  wre  can  learn  whether  or  not  an  appeal  can  be 
legally  taken,  in  the  present  instance,  only  by  finding  out  what 
the  specific  and  technical  sense  is.  Light  may  be  thrown  on 
the  subject,  either  by  precise  definition  or  by  consistent  usage. 
Precise  definition  is  wanting.  No  sentence  in  the  Book  of 
Discipline  defines  “final  judgment”  in  set  terms.  But  the 
consistent  usage  of  the  Book  reveals  a  specific  and  technical 
meaning  in  the  term  which  we  are  not  at  liberty  to  disregard  in 
Section  94.  “  Judgment,”  in  the  Revised  Book  of  Discipline, 

means  a  judicial  decision ,  on  the  merits  of  a  case ,  after  fidl 
trial.  Not  a  single  passage  of  the  Book  countenances  the 


21 


notion  that  it  may  be  used  of  tlie  termination  of  a  case  by  dis¬ 
missal.  The  word  occurs  twenty-three  times;  in  three  of  these 
it  denotes  opinion  or  general  practical  wisdom,  simply,  viz. : 
in  48,  69,  and  77 ;  in  48  it  is  the  “  judgment  ”  of  a  communi¬ 
cant  that  he  has  no  right  to  come  to  the  Lord’s  table ;  in  69  it 
is  the  “ judgment”  of  an  appellate  judicatory  that  new  evi¬ 
dence  offered  has  an  important  bearing  on  the  case  ;  in  77  “  its 
own  judgment”  is  to  be  exercised  by  each  judicatory.  The 
remaining  twenty  instances  of  its  use  refer  to  a  judicial  verdict 
in  the  strict  sense — a  determination,  after  full  and  regular  pro¬ 
cess,  of  the  merits  of  a  judicial  case.* 

This  will  be  evident  upon  examination.  21  provides  that  if 
an  accused  person  does  not  appear,  “the  judicatory  may  pro¬ 
ceed  to  trial  and  judgment  in  his  absence.”  22  says,  “If  the 
plea  be  6  guilty,’  the  judicatory  shall  proceed  to  judgment ; 
but  if  the  plea  be  ‘  not  guilty,’  or  if  the  accused  decline  to 
answer,  a  plea  of  ‘  not  guilty,’  shall  be  entered  of  record,  and 
the  trial  proceed .”  23  says,  after  speaking  of  the  taking  of  ev¬ 

idence,  the  hearing  of  the  parties  and  the  going  into  private 
session,  “  the  judicatory  shall  proceed  to  vote  on  each  specifi¬ 
cation  and  on  each  charge  separately,  and  judgment  shall  be 
entered  accordingly.”  24  says,  “The  charge  and  specifica¬ 
tions,  the  plea  and  the  judgment,  shall  be  entered  on  the  min¬ 
utes  of  the  judicatory.”  26  says,  “But  the  minister  or  elder 
so  engaged  (as  counsel)  shall  not  be  allowed,  after  pleading  the 
cause  of  the  accused ,  to  sit  in  j udgment  as  a  member  of  the 
judicatory.”  47  contains  the  word  four  times,  and  is  of  the 
nature  of  those  exceptions  that  prove  the  rule,  for  it  restricts 
the  consistent  usage  of  the  term  in  a  particular  case,  and  there¬ 
by  shows  clearly  what  the  Book  intends  by  it  when  it  is  not 
restricted  ;  the  section  is  here  given  entire  : 

‘k  If  a  person  commits  an  offence  in  the  presence  of  a  judicatory, 
or  conies  forward  as  his  own  accuser  and  makes  known  his  offence, 
the  judicatory  may  proceed  to  judgment  without  process ,  giving  the  of¬ 
fender  an  opportunity  to  be  heard;  and  in  the  case  first  named  he 
may  demand  a  delay  of  at  least  two  days  before  judgment.  The 
record  must  show  the  nature  of  the  offence,  as  well  as  the  judgment 
and  the  reasons  therefor,  and  appeal  may  be  taken  from  the  judg¬ 
ment  as  in  other  cases” 


*  It  occurs  in  this  sense  in  §§  21,  22,  23,  24,  26,  47,  79,  94,  96,  97,  99,  100,  101. 


22 


The  plain  meaning  of  this  is  that  in  other  cases  the  jndg 
ment”  mnst  he  given  after  full  process.  79  says  of  Reference 
for  trial  that  “it  submits  the  whole  case  to  th  %  final  judgment 
of  the  superior  (judicatory).”  94  is  the  one  under  considera¬ 
tion.  96  says  that  notice  of  appeal  “  shall  be  given  within  ten 
days  after  the  judgment  has  been  rendered.”  99  says  “  t\\z  judg¬ 
ment,  the  notice  of  appeal  .  .  .  (etc.)  shall  be  read”;  under 

given  conditions 

“the  judgment  of  the  inferior  judicatory  shall  be  affirmed.  Ir  one 
or  more  errors  be  found,  the  judicatory  shall  determine  whether  die 
judgment  of  the  inferior  judicatory  shall  be  reversed  or  modified,  or 
the  case  remanded  for  a  new  trial;  and  th  a  judgment,  accompanied 
by  a  recital  of  the  error  or  errors  found,  shall  be  entered  on  the 

record.” 


100  says : 

‘  ‘  When  the  judgment  directs  admonition  or  rebuke,  notice  of  appeal 
shall  suspend  all  further  proceedings ;  but  in  other  cases  the  j udg- 
ments  shall  be  in  force  until  the  appeal  is  decided.” 

Finally,  101  reads  as  follows  : 

“The  judicatory  whose  judgment  is  appealed  from  shall  send  up 
its  records,  and  all  the  papers  relating  thereto,  and  filed  with  the 
record.  If  it  fails  to  do  this,  it  shall  be  censured  ;  and  the  sentence 
appealed  from  shall  be  suspended  until  a  record  is  produced  on 
which  the  issue  can  be  fairly  tried. 

This  evidence  of  the  definite  and  precise  technical  usage  of 
the  word  “judgment,”  in  the  Revised  Booh  of  Discipline, 
might  be  safely  left  to  make  its  own  impression  on  all  unpreju¬ 
diced  minds.  Some  passages  are  naturally  less  cleai  than  othcis, 
but  not  one  is  inconsistent  with  the  interpretation  given,  and 
some  demand  it.  Sections  21,  22,  23,  24,  26,  47,  79  and  100 
are  clear  enough  to  satisfy  any  reasonable  demand.  Section  99, 
with  its  reference  to  a  “  new  trial,”  plainly  assumes  that  one 
trial  has  already  been  completed.  Section  101  actually  uses  the 
terms  “  judgment  ”  and  “  sentence  ”  as  equivalent  in  meaning. 
It  is  true  that  the  word  “  final  ”  is  not  usually  prefixed.  ^  It 
occurs  only  in  Sections  79  and  94.  But  no  one  can  claim  that 
the  prefixing  of  this  word  makes  the  “  judgment  ’  less  final 
than  it  would  be  without  the  prefi x.  The  force  of  the  prefix  can 
be  only  to  lay  stress  on  the  finality  of  the  judgment,  not  to  con¬ 
vert  the  judgment  into  a  different  act  from  that  which  it  else- 


23 


where  denotes.  The  conclusion  is  strengthened  by  observing 
the  difference  in  language  between  Section  94  ff.,  referring  to 
Appeals,  and  Section  83  ff.,  referring  to  complaints.  In  83  we 
hear  of  “  any  delinquency ,  or  any  decision ,  by  an  inferior 
judicatory,”  in  84  of  “  action  ”  taken,  and  similarly  in  88  ;  in 
85,  twice  of  the  “  decision  ”  of  a  judicatory  ;  over  against 
these  terms  the  more  precise  judgment  of  94,  96,  97,  99,  100, 
101,  gains  added  force. 

If  we  compare  the  language  of  the  Revised  Book  with  that  of 
the  old  Book,  we  notice  a  similar  fact.  The  old  Book  was 
more  liberal  in  permitting  appeals.  It  said  : 

“An  appeal  is  the  removal  of  a  cause  already  decided,  from  an  in¬ 
ferior  to  a  superior  judicatory,  by  a  party  aggrieved.” 

The  new  Book  is  much  more  definite.  It  restricts  the  right 
of  appeal  to  the  “final  judgment  of  the  lower  judicatory,”  in  a 
judicial  case.  The  added  precision  is  a  clear  mark  of  the  inten¬ 
tion  to  exclude  anything  not  conforming  with  technical  exact¬ 
ness  to  its  new  statement. 

These  things  being  so,  it  follows  that  no  appeal  was  in  order 
from  the  action  of  the  Presbytery  of  Hew  York  in  dismissing 
the  case  against  Dr.  Briggs.  That  action  was  not  a  “  final 
judgment”  in  the  sense  of  the  Book  of  Discipline.  It  was 
not  a  verdict  on  the  merits  of  the  case  after  full  trial.  It  could 
not  be  called  a  “  sentence.”  It  was  not  entered  as  a  “  judgment  ” 
after  a  vote  “  on  each  specification  and  on  each  charge  sepa¬ 
rately.”  It  satisfied  none  of  the  conditions  of  a  “  final  judg¬ 
ment.”  An  appeal  from  it  was  not  legal.  The  only  ways  of 
bringing  it  properly  before  a  higher  judicatory  were  that  of 
General  Review  and  Control,  and  that  of  Complaint.  May  it 
not  be  that  something  like  a  sub-consciousness,  at  least,  of  this 
state  of  the  case  was  in  the  minds  of  the  Appellants,  giving  rise 
to  the  careful  explicitness  of  their  title  page  ;  the  somewhat  too 
much  protesting  of  their  reference  (p.  8)  to  “  the  aforesaid 
action,”  “  which  was,  so  far  as  said  Presbytery  is  concerned,  the 
final  judgment  of  the  said  Presbytery”;  and  the  anxious  care 
with  which  they,  some  nineteen  times,  repeat  the  words  “  fina 
judgment”  in  the  course  of  their  appeal,  viz. :  in  the  following 
specifications :  I.,  1,  3,  4,  7  (twice),  9  ;  II.,  1  (twice),  2 ;  III.,  1 


24 


IV.,  1,  2  ;  V.,  1 ;  VI.,  1,  2  (twice),  3,  4,  7.  More  trustworthy 
information  as  to  the  meaning  of  the  Book  of  Discipline  can 
be  found  in  the  Book  itself  than  is  offered  by  the  skillful  inter¬ 
pretation  of  even  so  ingenious  a  body  of  men  as  the  Appellants. 

In  harmony  with  this  obvious  intention  of  the  Book  of 
Discipline,  are  various  other  allusions  and  phrases,  such  as  (99) 
the  provision  for  affirming,  reversing  or  modifying  “  the  judg¬ 
ment  of  the  inferior  judicatory,”  for  remanding  the  case  “  for 
a  new  trial  ” — presupposing  that  one  has  already  been  had 
and  the  “  grounds  of  appeal  ”  themselves  (95),  with  their  par¬ 
ticular  reference  to  the  receiving  of  “testimony”  such  as 
naturally  and  lawfully  precedes  the  “  judgment,”  but  is  not 
allowable  before  the  opportunity  is  given  to  a  judicatory  to 
dismiss  a  case  (22).  The  appellants  labored  with  much  in¬ 
dustry  to  adduce  all  these  grounds  of  appeal,  but  their  diligent 
efforts  only  make  it  the  more  glaringly  evident  that  they  were 
trying  to  do  what  cannot  be  done,  because  the  “  grounds  of 
appeal”  in  95  were  laid  down  in  view  of  a  veritable  “ final 
judgment  ”  on  the  merits  of  the  case,  and  have  no  applica 
bility  to  a  vote  of  dismissal. 

(b)  An  appeal  is  illegal  against  a  ref  usal  to  dismiss  a  case, 
therefore  also  against  a  dismissal. 

That  appeal  in  the  present  case  was  illegal  appeals  also  from 
another  consideration.  The  theory  of  appeal  includes  as  a 
fundamental  element  the  equal  rights  of  both  parties ,  'i.  e .,  if 
one  party  appeal  from  a  final  judgment,  the  other  party  would 
have  equal  right  to  appeal  from  an  opposite  judgment.  In  the 
case  of  a  decision  to  dismiss,  this  condition  does  not  exist.  For 
if  a  judicatory  vote  not  to  dismiss,  the  case  proceeds,  and  the 
judicatory’s  decision  on  dismissal  is  not  its  final  decision  in  the 
case.  The  accused,  therefore,  would  have  no  right  to  appeal 
from  the  judicatory’s  action  in  refusing  to  dismiss,  but  could 
only  complain.  If,  then,  the  prosecutor  could  appeal  from  a 
decision  to  dismiss,  the  prosecutor  has  a  distinct  advantage  over 
the  accused,  in  that  at  one  point  of  the  proceedings  he  may  ap¬ 
peal  from  a  given  decision,  while  the  accused  may  not  appeal 
from  an  opposite  or  contrary  decision.  But  this  violates  the 
fundamental  element  in  the  theory  of  appeal  referred  to  above 


25 


viz.,  the  equal  right  of  both  parties.  Nothing  of  this  sort  can 
have  been  intended  by  the  Book  of  Discipline,  nor,  if  it  were 
intended  by  the  same,  could  it,  in  the  absence  of  explicit  pro¬ 
vision,  be  tolerated  as  an  admissible  interpretation. 

It  follows  from  all  these  lines  of  evidence  that  no  appeal  can 
be  taken  from  a  decision  to  dismiss  a  case,  and  that  the  only 
way  by  which  such  action  can  be  brought  to  the  notice  of  the 
higher  court,  other  than  by  the  routine  course  of  General 
.Review  and  Control,  is  that  of  Complaint. 

The  duty  of  the  Synod  as  one  of  the  established  guardians  of 
the  Constitution  is  very  plain.  Action  by  the  Synod  is  the 
only  avenue  toward  righting  of  the  wrong  done  by  failure  to 
note  the  restriction  of  the  right  of  appeal  to  a  final  judgment, 
and  toward  a  proper  vindication  of  the  law  of  the  Church. 

But  the  Synod  has  especial  responsibilities  in  the  present  case 
arising  out  of  its  relation  to  the  Presbytery.  The  Synod  is  “  to 
taJce  effect  ual  care  that  presbyteries  observe  the  Constitution  of 
the  church. 

1.  The  Presbytery  of  New  York,  by  the  action  complained 
of,  condoned  a  violation  of  the  Constitution,  in  that  the  modera¬ 
tor  had  given  a  decision  without  allowing  the  parties  to  be 
heard.” 

Section  27  of  the  Book  of  Discipline  says  :  “  Questions  as  to 
order  or  evidence,  arising  in  the  course  of  a  trial,  shall,  after 
the  parties  have  had  an  opportunity  to  be  heard ,  be  decided  by 
the  moderator,  subject  to  appeal.”  Now,  if  this  question,  aris¬ 
ing  as  it  did,  in  the  course  of  the  trial,  and  after  the  moderator 
had  made  the  solemn  announcement  provided  for  by  the  40th 
General  Pule  for  Judicatories,  was  one  for  the  moderator’s  de¬ 
cision  at  all,  it  can  have  been  so  only  because  it  was  a  question 
of  order  or  evidence.  But  in  that  case  the  requirement  that  the 
parties  be  heard  was  in  force,  according  to  the  section  just  read. 
This  requirement,  however,  was  not  observed.  It  is  a  matter 
of  common  knowledge,  for  which  testimony  can  be  adduced  if 
the  Synod  so  desire,  that  the  moderator,  on  the  4th  of  Novem¬ 
ber,  1891,  decided  the  question  as  to  the  standing  of  th  cm- 
mittee  very  promptly  as  soon  as  it  was  raised,  without  giving 
anybody  an  opportunity  to  be  heard.  He  even  refused  the  floor 


26 


to  the  accused  party  who  sought  to  take  it.  The  decision  of  the 
moderator  was  evidently  prepared  in  advance  and  uttered,  at 
the  first  occasion.  This  violation  of  the  constitutional  piovision 
is  especially  notable  in  view  of  the  fact  that  at  the  previous 
meeting  of  the  Presbytery,  October  5,  1891,  a  resolution  was 
introduced  to  the  effect  that  the  Presbytery  “  deems  it  expe¬ 
dient 

TO  AKREST  THE  JUDICIAL  PROCEEDINGS 

at  this  point,  and  hereby  discharges  the  committee  from  fur¬ 
ther  consideration  of  the  case  ”  (Case  against  Professoi  Priggs, 
p.  58).  The  motion  was  entertained  by  the  moderator  and  put 
to  the  house.  It  involved  the  absolute  right  of  the  Presbytery 
to  control  and  discharge  the  committee,  which  the  same  moder¬ 
ator,  on  November  4th,  denied  so  absolutely  that  he  lefused  on 
that  day  to  entertain  a  motion  to  discharge  the  committee. .  1  et 
on  a  point  on  which  he  himself  had  undergone  so  radical  a 
change  of  view,  he  failed  to  comply  with  the  important  consti¬ 
tutional  provision  that  the  parties  be  heard.  If,  then,  the 
Presbytery’s  vote  to  sustain  him  be  allowed  to  pass  unchal¬ 
lenged,  there  is  grave  danger  that  an  interpretation  of  an  im¬ 
portant  matter  of  constitutional  law,  which  was  itself  made  in 
an  unconstitutional  way,  will  be  established  in  our  chuich. 

2.  But  further,  the  Presbytery  of  New  York,  by  the  action 
complained  of,  countenanced  an  unconstitutional  assumption  on 
the  Moderator’s  part,  of  power  to  decide  questions  of  Constitu¬ 
tional  interpretation,  as  distinguished  from  questions  of  ordei 
and  evidence. 

According  to  Form  of  Government,  Cli.  xix.,  ^  2,  The 
Moderator  is  to  be  considered  as  possessing,  by  delegation  from 
the  whole  body,  all  authority  necessary  for  the  preservation  of 
order ;  for  convening  and  adjourning  the  judicatory ;  and  di¬ 
recting  its  operations  according  to  the  rules  of  the  church. 
Book  of  Discipline,  §  27  (already  cited),  says :  “  Questions  as 
to  order  or  evidence,  arising  in  the  course  of  a  trial,  shall,  aftei 
the  parties  have  had  an  opportunity  to  be  heard,  be  decided  by 
the  Moderator,  subject  to  appeal.”  Pule  6,  of  the  General 
Pules  for  Judicatories,  says:  “  The  Moderator  may  speak  to 
points  of  order,  in  preference  to  other  members,  rising  from  his 


27 


seat  for  that  purpose  ;  and  shall  decide  questions  of  order,  sub¬ 
ject  to  an  appeal  to  the  judicatory  by  any  two  members.”  But 
neither  these  nor  any  other  provisions  of  our  law  permit  the 
Moderator  to  announce  his  own  interpretation  of  an  article  of 
the  constitution,  and  use  this  personal  interpretation  as  a 
standard  for  determining  the  action  of  the  body.  No  Modera¬ 
tor  has  a  right  to  decide  for  a  Presbytery  a  question  of  the  in¬ 
terpretation  of  the  Confessions  of  Faith,  and  to  refuse,  e.  y.,  to 
entertain  a  motion  to  proceed  with  the  licensure  or  ordination 
of  a  candidate  wTho  does  not  hold  that  Confession,  Chap.  x.  §  3, 
teaches  that  some  infants,  dying  in  infancy,  are  non-elect.  But 
if  a  Moderator  has  no  right  to  impose  his  interpretation  of  one 
part  of  the  constitution  on  a  Presbytery,  no  more  has  he  the 
right  to  impose  an  interpretation  of  another  part,— no  more 
right  to  interpret  authoritatively  the  Book  of  Discipline  than 
the  Confession  or  the  Catechisms.  This  is  often  lost  sight  of. 
It  was  lost  sight  of  by  the  majority  of  the  Presbytery  of  New 
York  in  sustaining  the  Moderator,  November  4th,  1891,  and 
thereby  recognizing  his  authority  to  make  a  ruling  on  the  point 
at  issue.  It  wTas  lost  sight  of  by  the  Moderator  himself,  who 
doubtless  committed  the  error  through  inadvertence.  When, 
however,  attention  is  once  called  to  the  matter,  a  simple  state¬ 
ment  of  it  would  seem  to  be  sufficient.  All  questions  of  in¬ 
terpretation,  to  whatever  part  of  the  constitution  they  relate, 
belong  to  the  courts  of  the  church  themselves.  They  must  be 
determined  on  motion,  after  full  opportunity  for  debate.  It  is 
not  constitutional  to  allow  them  to  be  settled  by  a  decision  of 
the  Moderator.  Otherwise  the  entire  constitution  is  reduced 
to  the  level  of  a  set  of  Pules  for  Judicatories,  and  the  glory 
and  strength  of  a  constitutional  church  is  gone.  The  Moderator 
becomes  a  semi-dictator.  If  he  were  disposed  to  be  domineer¬ 
ing,  he  might  prevent  debate  on  the  most  serious  matters  by  a 
simple  ruling.  It  is  for  this  reason,  that  the  powers  of  a 
moderator  are  constitutionally  restricted.  The  only  safety  is  in 
following  the  provisions  of  the  constitution.  An  especial 
responsibility  rests  now  upon  the  Synod,  not  to  allowr  the  action 
of  the  higher  court  to  affect  its  action  on  the  Complaint,  because 
otherwise  there  is  grave  peril  that  a  novel  interpretation  may 
be  established  in  the  Church,  which  depends  ultimately  upon 


28 


an  unconstitutional  act  of  the  Moderator  of  the  New  ork 
Presbytery  in  giving  a  decision  upon  a  matter  not  belonging  to 

him  to  decide. 

3.  The  especial  responsibility  resting  upon  the  Synod  not  to 
allow  the  action  of  the  Assembly  to  deter  it  from  deciding  this 
Complaint  impartially,  appears  also  in  the  fact  that  the  action  of 
Presbytery  against  which  Complaint  is  made,  did  not,  as 
there  are  good  grounds  for  believing  it  did  not,  represent  the 
matured  opinion  of  the  majority  of  the  Presbytery.  The  Pres¬ 
bytery  acted,  it  appears,  under  a  misapprehension  in  sustaining 
the  Moderator,  and  action  by  this  Synod  is  the  only  means  by 
which  the  injurious  consequences  of  that  misapprehension  may 
be  averted.  The  existence  of  the  misapprehension  is  proven, 
not  only  by  positive  statements  by  members  of  the  Presbytery, 
after  the  vote  was  taken,  and  they  perceived  its  bearing,  but 
also  by  the  number  of  names  attached  to  the  Complaint.  The 
Presbytery  voted,  64  to  57,  to  sustain  the  Moderator  s  ruling. 
The  minority  numbered  57,  but  attached  to  this  Complaint  aie 
the  names  of  67  who  were  present  and  voting  when  the  deci¬ 
sion  was  made,  enough,  if  the  question  had  been  understood,  to 
secure  a  reversal  of  the  Moderator’s  ruling  by  a  majority  of  13. 
No  debate  was  allowed.  The  matter  decided  and  the  signifi¬ 
cance  of  the  decision  were  not  fully  comprehended  at  the  time. 
The  Church  ought  not  to  suffer  because  of  this  misapprehen¬ 
sion,  The  Synod  cannot  permit  itself  to  be  deterred  from 
considering,  de  novo ,  the  question  at  issue,  by  an  action  of  the 
Assembly  indirectly  dealing  with  it. 

4.  I  will  add  only  this  further  consideration,  viz.:  that  a 
special  responsibility  rests  upon  the  Synod  to  exercise  its  rights, 
without  regard  to  the  action  of  the  higher  court,  because  of 
the  large  number  and  the  character  of  the  Complainants.  The 
Complaint  is  not  signed  by  one  or  two  litigious  persons.  There 
are  114  names  appended  to  the  document,  a  number  equal  to  a 
majority  of  the  enrolled  membership  of  the  Presbytery  of  New 
York,  and  to 

AN  ENORMOUS  MAJORITY 

of  the  members  of  that  Presbytery  ever  actually  present  at  a 
meeting  of  the  body;  a  number  equal  to  the  half  of  this  Synod ; 


29 


a  number  including  tbe  ministers  of  most  of  the  large  and 
energetic  churches,  all  the  active  Professors  in  the  Theological 
Seminary  who  are  members  of  the  New  York  Presbytery,  and 
elders  of  the  highest  standing. 

Probably  no  complaint  was  ever  presented  in  any  part  of 
our  church  which  represented  so  emphatically  the  wisdom  and 
Christian  efficiency  of  the  body  complained  against.  Every 
complaint  is  to  be  treated  with  respect.  A  complaint  signed 
as  this  one  is,  is  one  which  no  Synod  should  be  deterred  from 
considering  by  any  action  of  the  higher  court. 

A  single  word  more  and  these  long  preliminary  remarks  are 
ended.  It  is  conceivable  that  after  the  Synod  shall  have  fully 
considered  the  matter,  it  will  come  to  a  conclusion  on  the  merits 
of  the  Complaint  different  from  and  opposite  to  that  represented 
by  the  vote  of  the  Presbytery.  It  is  the  desire  and  aim  of  the 
Complainants  to  bring  the  Synod  to  such  a  conclusion.  The 
Synod  itself,  as  an  impartial  court,  must  recognize  the  possibility 
of  such  a  conclusion.  But,  it  may  be  asked,  what  would  be  the 
effect  of  such  a  decision,  if  reached,  on  the  position  of  the 
whole  case  ?  Would  it  not  be  a  conflict  of  authorities,  con¬ 
fusion  of  the  minds  of  the  Presbytery,  a  complete  entangle¬ 
ment  in  procedure  from  which  the  Piesbytery  and  the  other 
courts  of  the  Church  will  find  it  impossible  to  extricate  them¬ 
selves  ?  Even  if  wrong  has  been  done,  is  it  not  better  to 
acquiesce  in  it,  rather  than  to  drag  the  Church  through  long  and 
wearisome  litigation  over  technical  matters  of  law? 

To  this  question,  if  it  should  arise,  I  am  confident  the  Synod 
would  reply  that  acquiescence  in  wrong  by  the  appointed 
guardians  of  the  right  is  never  a  path  to  lasting  peace,  that 
relief  from  confusion  in  a  particular  case  would  be  dearly 
bought  at  the  price  of  hasty  and  wrong  interpretations  of  the 
law,  which  alone  can  guard  all  cases  against  ending  in  confusion, 
and  that  the  Church  can  emerge  from  the  legal  difficulties  in 
which  the  case  is  already  involved  only  by  the  determination  of 
each  court  to  do  its  full  duty,  regardless  of  consequences. 

Mr.  Moderator ,  Fathers  and  Brethren  of  the  Synod:  I  have 
thus  endeavored  to  set  forth  reasons  why  the  recent  action  of 
the  General  Assembly  is  no  barrier  to  the  entertainment  of  this 
Complaint,  and  why,  on  the  other  hand,  the  circumstances  are 


30 


such,  by  reason  of  the  gravity  of  the  issues  and  the  peculiar 
stress  of  the  situation,  that  the  Synod  cannot  decline  to  enter¬ 
tain  and  candidly  consider  it.  .  . 

The  questions  involved  in  the  Complaint  were  m  no  direct 

and  proper  manner  before  the  Assembly,  the  Assembly  did  not 
pass  upon  them,  except  by  assumption  and  inference,  and  the 
rio-ht  of  prosecuting  this  Complaint  was  expressly  reserved 
before  the  Assembly,  without  protest  or  objection ;  the  General 
Assembly  cannot  deprive  the  Synod  of  functions  especially  as¬ 
signed  to  it  by  the  Constitution,  nor  can  any  action  of  the  As¬ 
sembly  destroy  the  right  of  Complaint,  by  making  a  conit 
incompetent  to  receive  a  Complaint ;  beside  this,  the  Synod  is 
bound,  as  a  constituted  body,  to  exercise  the  functions  assigned 
and  reserved  to  it  by  the  Constitution ;  it  is  bound  not  to  destroy 
the  right  of  Complaint ;  it  is  bound  to  uphold  the  Constitution, 
the  safeguard  of  us  all,  by  resisting  encroachments  upon  its 
proper  authority,  and  especially  by  refusing  to  be  influenced  by 
action  taken  in  violation  of  the  law  of  stay  arising  from  a  Com¬ 
plaint  sufficiently  signed ;  it  is  bound  to  prevent  the  establish¬ 
ment  of  constitutional  interpretations  by  unconstitutional 

means _ as  by  a  decision  as  to  which  the  parties  were,  in  diso- 

obedience  to  the  Constitution,  not  heard ;  or  as  to  which  the 
Moderator  had  no  authority,  and  the  Presbytery,  therefore,  no 
right  to  sustain;  or  as  to  which  the  action  of  the  Presbytery  was 
due  to  misunderstanding  of  the  issue  ;  or  against  which  the 
weight  of  so  many  wise  and  good  men  is  thrown,  as  have 

attached  their  names  to  this  Complaint. 

For  all  these  reasons,  it  is  urged  that  the  Synod  entertain  this 
Complaint,  and  take  such  action  as  wisdom  shall  dictate. 


II.* 

We  come  now  to  the  subject  matter  of  the  Complaint,  and 
the  reasons  adduced  in  its  support.  It  would  have  been  pos¬ 
sible  to  complain  on  the  technical  grounds  which  have  been 
already  brought  in,  in  another  connection.  But  a  judgment  of 
the  Synod  on  the  merits  of  the  question  at  issue  was  desired. 
All  that  I  shall  have  to  say  further  relates  to  this  question  on 

its  merits.  _ _ 


*Wbat  follows  was  not 


delivered  before  the  Synod,  because  no  opportunity  was  allowed. 


31 


The  first  point  decided  by  the  Moderator  and  sustained  by 
Presbytery  was  to  this  effect : 

“ 1.  That  the  Committee  which  prepared  charges  against  Dr. 
Briggs  (presented  to  Presbytery  October  5,  1891),  was  a  Com¬ 
mittee  of  Prosecution  under  Section  11  of  the  Revised  Book 
of  Discipline.” 

Respecting  this  your  Complainants  represent : 

“  1.  The  records  of  Presbytery  do  not  show  that  the  Com¬ 
mittee  was  appointed  as  a  Committee  of  Prosecution  under 
Section  11  of  the  Revised  Book  of  Discipline  ” 

This  representation  is  admitted  on  all  hands  to  be  literally 
true. 

It  is  admitted  that  the  records  of  Presbytery  do  not  explicitly 
show  the  appointment  of  a  Committee  of  Prosecution.  There 
is  no  statement  that  a  Committee  was  appointed  “  to  conduct 
the  prosecution  in  all  its  stages,”  nor  is  there  any  action  of 
Presbytery  recorded  in  language  at  all  resembling  these  words, 
or  implying  the  function  set  forth  in  them.  The  action  from 
which  Committee  derived  ail  its  powers  was  taken  by  the  Pres¬ 
bytery,  May  11,  1891,  in  the  following  terms : 

Resolved ,  That  a  Committee  be  appointed  to  arrange  and  prepare 
the  necessary  proceedings  appropriate  in  the  case  of  Dr.  Briggs. 

There  is  not  a  word  here  about  acting  as  prosecutor,  still  less 
about  conducting  the  prosecution  “  in  all  its  stages,  in  whatever 
judicatory.”  The  resolution,  with  its  moderate  and  limited 
provisions,  lends  no  color  to  the  view  that  in  passing  it  the 
Presbytery  intended  to  provide  for  a  committee  with  the  large 
responsibilities  and  powers  conferred  by  the  Book  of  Discipline 
on  a  Committee  of  Prosecution.  If  it  did,  why  was  so  inade¬ 
quate  a  form  chosen  to  convey  so  weighty  a  meaning  ?  Under 
the  resolution  as  passed,  it  would  be  natural  for  a  Committee 
to  draw  up  a  plan  of  procedure,  including  the  nomination  of  a 
Committee  of  Prosecution,  or  even,  by  giving  the  words  of  the 
resolution  a  specific  interpretation,  to  frame  charges  against  a 
person  to  be  tried  ;  but  no  exegesis  can  make  the  resolution  it¬ 
self  mean  that  a  Prosecuting  Committee  shall  be  appointed. 
The  member  of  Presbytery,  Rev.  Mr.  Andrew  Shiland,  who 
moved  the  appointment  of  this  Committee,  has  himself  signed 


32 


the  Complaint  to  Synod  against  the  Presbytery  for  sustaining 
the  Moderator  in  his  decision,  “that  the  Committee  which 
prepared  charges  against  Dr.  Briggs  (presented  to  Presbytery 
October  5,1891),  was  a  Committee  of  Prosecution  under  Section 
11  of  the  Bevised  Book  of  Discipline.”  It  is  evident,  therefore, 
that  the  mover  of  the  resolution  did  not  design  to  constitute 
this  Committee  a  Prosecuting  Committee,  hut  simply  a  Com¬ 
mittee  to  take  such  action  as  might  he  immediately  necessary 
in  the  case.  Dow  there  is  no  safeguard  against  the  abuse  of 
power  by  committees,  unless  the  functions  of  committees  aie 
definite ;  they  cannot  he  merely  inferential ;  still  less  can  they 
be  distinctly  other  than  those  laid  down  in  the  terms  of  appoint¬ 
ment.  It  is  impossible  to  carry  on  any  system  of  constitutional 
and  representative  government,  if  a  committee,  or  any  members 
of  the  appointing  body,  be  allowed  to  read  into  the  act  of  ap¬ 
pointment  functions  and  rights  not  hinted  at  in  the  act  itself. 
There  is  no  security  unless  precision  and  scrupulous  observance 
of  what  is  specified  he  absolutely  insisted  on. 

In  the  present  case  it  appears  that  the  Committee  appointed 
May  11th  in  the  terms  quoted,  is  referred  to  in  the  records  of 
Presbytery,  May  17th  and  June  8th  in  the  same  terms  :  May 
17th,  1891 :  “  The  Moderator  announced  as  the  Committee  4  to 

arrange  and  prepare  the  necessary  proceedings  appropriate  to 
the  case  of  Dr.  Briggs,’  Ministers,”  etc.  (the  names  follow); 
June  8th,  1891:  “The  Committee  having  in  charge  the  case 
of  Professor  Briggs  reported  as  follows :  T  our  Committee  ap¬ 
pointed  at  the  May  meeting  of  Presbytery  to  arrange  and  pre¬ 
pare  the  necessary  proceedings  appropriate  in  the  case  of 
Professor  Briggs  reports  progress,”  etc.  The  records  show  no 
appearance  of  the  claim  to  be  a  Committee  of  Prosecution 
under  Section  11  (whatever  language  the  Committee  may  have 
used  of  itself  in  its  sessions  or  in  conversations  of  its  members 
with  their  friends)  until  October  5th,  the  day  on  which  the 
charges  against  Dr.  Briggs  were  presented  to  the  Presbytery 
and  distributed  in  printed  form.  The  cover  of  this  document, 
emanating  from  the  Committee  which  was  appointed  in  such 
different  terms,  gave  the  first  intimation  to  Presbytery,  as  far 
as  the  records  show,  that  the  Committee  was  a  Committee  of 
Prosecution.  Apparently  it  was  an  assumption,  pure  and  sim. 


33 


pie,  of  rights  never  conferred.  It  is  not  intended  to  say  that 
the  Committee  consciously  usurped  rights  not  its  own,  but  sim¬ 
ply  that  in  styling  itself  a  Committee  of  Prosecution  it  took 
for  granted  what  was  not  said  in  the  act  of  appointment,  leaving 
out"  of  account  the  necessity  of  strict  construction  in  all  such 

matters. 

But  it  is  claimed  that  Presbytery  must  have  designed  “  to  ap¬ 
point  such  a  Committee,  because  it  could  appoint  no  other”  (to 
quote  from  the  Report  of  the  Committee  appointed  to  answer 
the  Protest  of  Dr.  Henry  Yan  Dyke,  a  document  that  has  been 
widely  scattered  over  the  Church).  It  would  be  sufficient  to 
reply,  that,  in  view  of  human  weakness,  it  is  by  no  means  safe 
to  infer  that  because  the  law  requires  a  certain  action  at  a  cer¬ 
tain  time,  therefore  any  action  taken  at  that  time  must  be  the 
action  required  by  the  law.  Presbyteries  are  not  infallible.  It 
might  be  that  the  Presbytery  of  Hew  York  did  not  do  what  it 
ought  to  have  done  in  the  matter  of  appointing  a  Prosecuting 
Committee.  The  statement  in  the  Book,  that  such  a  Committee 
is  to  be  appointed,  is  not  of  itself  sufficient  evidence  that  such  a 

Committee  actually  was  appointed. 

But  it  cannot  be  seriously  contended  that  the  Presbytery 
might  not  appoint  a  Committee  to  prefer  charges,  or  that  such 
a  Committee  must  be  identical  with  the  Committee  which  is  to 
be  appointed  “  to  conduct  the  prosecution  in  all  its  stages.”  It 
is  not  necessary  that  the  Committee  for  the  latter  pui pose  be 
appointed  at  once,  “  when  the  prosecution  is  initiated  by  a  judi¬ 
catory.”  Section  19  says,  “  When  a  judicatory  enters  on 
the  consideration  of  an  alleged  offense,  the  charge  and  specifi¬ 
cations,  which  shall  be  in  writing,  shall  be  read,”  etc..  But 
this  does  not  mean  “  shall  be  at  once  read.  In  the  case  be 
fore  us,  nearly  five  months  elapsed  between  entering  on  the 
consideration  of  an  alleged  offense  and  the  reading  of  the 
charges  and  specifications ;  yet  no  one  pretends  that  in  this 
respect  Presbyterian  law  was  violated.  In  the  same  way  it  was 
not  obligatory  on  Presbytery  to  appoint  a  Prosecuting  Com¬ 
mittee  under  Section  11  on  the  11th  of  May,  1891,  and  Pres¬ 
bytery  was  perfectly  competent  to  appoint  another  committee 
for  a  different  purpose  connected  with  the  case.  The  1  lotest 
Committee,  already  quoted  from,  well  say  that  the  “Committee 


34 


to  prosecute”  is  mentioned  in  Section  11,  “  in  a  single  connected 
sentence,  which  we  have  no  right  to  break,  either  in  intent  or 
application.”  It  follows  that  an  appointment  which  does  not 
correspond  at  all  to  that  sentence  cannot  be  regarded  as  intended 
to  correspond  with  it. 

But  it  is  claimed  further  by  the  Protest  Committee  that 
failure  to  object  to  the  term  “  Committee  of  Prosecution,”  and 
to  the  reference  to  Section  11  in  their  Report,  as  well  as  ap¬ 
proval  of  the  minutes  containing  that  Report,  and  approval  of 
the  records  of  Presbytery  by  the  Synod  of  New  York,  October 
22,  1891,  debar  us  from  now  raising  any  objection.  But,  to  re¬ 
fer  first  to  the  alleged  failure  to  object — in  fact  an  objection 
was  made  at  the  time  by  Dr.  Thompson,  and  the  difference  of 
opinion  in  the  Presbytery  as  to  the  status  of  the  Committee  was 
fully  developed.  And  the  Presbytery  did  not  at  that  meeting 
decide  the  question.  That  objection  was  reserved  for  the 
proper  occasion,  when  the  Committee  claimed  for  the  first  time 
the  rights  of  a  Committee  of  Prosecution  (see  stenographer’s 
report).  The  fact  that  the  name  “  Committee  of  Prosecution  ” 
was  allowed  to  go  on  the  minutes  without  protest  did  not,  in  the 
minds  of  the  objectors,  waive  their  right  of  objection  at  a  later 
stage,  when  for  the  first  the  Committee  proposed  to  act  as  a 
Committee  of  Prosecution.  It  is  one  thing  to  use  language 
improperly,  and  call  one’s  self  or  one’s  committee  by  a  wrong 
title — acts  of  this  kind  are  ignored  or  condoned  every  day — but 
it  is  quite  another  thing  to  undertake  to  act  in  the  capacity 
involved  in  the  wrong  title.  That  is  the  critical  moment,  when, 
if  ever,  objection  must  be  made.  In  presenting  charges  and 
specifications  October  5th,  the  Committee  appointed  May  11th 
was  doing  no  more  than  might  easily  and  properly  be  supposed 
to  fall  within  the  terms  of  its  instructions.  But  when,  Novem¬ 
ber  4th,  it  was  attempted  to  give  it  another  standing,  to  translate 
its  unauthorized  title  into  unauthorized  action,  objection  was 
promptly  made,  and  even  without  the  possibility  of  discussion, 
the  Presbytery,  as  already  stated,  was  almost  evenly  divided. 
These  proceeding  do  not  show  that  there  was  acquiescence  in 
the  assumption  of  the  Committee,  but  the  contrary.  The  action 
of  those  who  objected  October  5th,  like  that  of  those  who  voted 
against  sustaining  the  Moderator  November  4th,  was  consistent 


35 


with  only  one  view  of  the  standing  of  the  Committee,  namely, 
that  having  been  appointed  by  the  Presbytery  “  to  arrange  and 
prepare  the  necessary  proceedings  appropriate  to  the  case,”  and 
for  no  other  purpose,  when  the  case  was  dismissed  and  no  fur¬ 
ther  proceedings  were  “  necessary  ”  or  “  appropriate,”  their 
function  terminated. 

With  reference  to  the  approval  of  the  Minutes,  as  a  supposed 
bar  to  further  objection,  it  is  enough  to  cite  without  comment 
the  following  action  of  the  General  Assembly  in  1879  (Minutes, 

1879,  p.  613  ;  Digest,  pp.  663,  664) : 

u  Overture  from  Bev.  Luther  Dodd,  a  member  of  the  Pies- 
bytery  of  Fort  Dodge,  asking  the  General  Assembly  to  reply 
to  the  following  questions  : 

« 1.  Does  the  approval  of  the  Minutes  of  a  lower  court,  as 
those  of  a  Presbytery  by  a  Synod,  not  necessarily  carry  with  it 
an  approval  of  any  and  every  judicial  decision  recorded  in  those 

minutes  ? 

“  2.  Is  it  competent  for  a  Synod,  having  approved  the  records 
of  a  Presbytery,  to  remand  a  case  recorded  in  those  records 
for  new  trial,  on  grounds  reflecting  censure  on  the  Presbytery  ? 

“  3.  Or  would  it  be  proper  for  a  Synod,  in  a  case  where  they 
approve  the  Minutes  of  Presbytery,  to  require  a  new  trial  on 
any  other  ground  than  alleged  new  testimony  ? 

“  The  Committee  recommended  the  following  reply  :  The 
constituted  right  of  appeal,  4  either  from  a  part  of  the  proceed¬ 
ings  of  a  judicatory  or  from  a  definitive  sentence,’  and  the 
right  of  complaint  4  respecting  a  decision  by  an  inferior  judica¬ 
tory,’  4  either  before  its  rising  or  within  ten  days  thereafter, 
cannot  be  in  any  way  affected  by  the  approval  of  the  minutes 
of  the  judicatory  against  the  action  of  which  the  appeal  or 
complaint  may  be  taken.” 

Your  Complainants  respectfully  submit  that  the  recent  ap¬ 
pellants  before  the  General  Assembly  were  not  a  Committee  of 
Prosecution  appointed  in  accordance  with  Section  11  of  the 
Book  of  Discipline,  but  a  Committee  appointed  under  the  gen¬ 
eral  powers  of  the  Presbytery,  for  a  restricted  purpose,  and 
that  therefore  whatever  may  be  true  of  Committees  of  I  rose- 
cution,  this  Committee  was,  like  other  committees,  subject  to 


36 


tlie  control  of  Presbytery,  could  be  discharged  at  the  will  of 
Presbytery,  and  had  no  right  of  appeal  from  a  judgment  of 
Presbytery. 

But  the  Presbytery  further  sustained  the  Moderator  in  ruling : 

“  2.  That  this  Committee  was  in  the  house  on  the  day  on 
which  the  citation  was  returnable  (November  4,  1891,  as  afore¬ 
said)  as  an  original  party 

On  this  your  Complainants  represent : 

“  2.  Section  10,  of  the  Pcevised  Book  of  Discipline,  declares 
that  c  when  the  prosecution  is  initiated  by  a  judicatory,  the 
Presbyterian  Church  in  the  Bnited  States  of  America  shall  be 
the  prosecutor,  and  an  original  party.’  But  the  Presbyterian 
Church  in  the  United  States  of  America  was  represented  in 
the  house  by  the  Presbytery  of  New  \  ork  itself,  and  not  by  a 
Committee  of  the  Presbytery.” 

This  representation  is  independent  of  your  decision  on  the 
question  whether  the  Committee  was  a  Committee  of  Prosecu- 
tion.  Even  if  it  were,  still  it  could  not  claim  the  standing  of 
an  original  party.  Even  a  Committee  of  Prosecution  derives 
all  its  rights  through  the  Presbytery  that  appointed  it. 

It  can  have  no  relations  to  the  Church  at  large  except  through 
the  Presbytery.  It  cannot,  therefore,  thrust  Presbytery  aside, 
and  directly  represent  the  Church  at  large.  The  Church  at 
large  is  not  related  to  the  Committee  except  through  the  Pres¬ 
bytery  ;  the  Committee,  therefore,  cannot  represent  the  original 
party,  which  is  the  Church  at  large,  except  (a)  so  far  as  the 
Presbytery  itself  represents  that  original  party,  since  the  Pres¬ 
bytery  can  confer  no  powers  which  it  does  not  itself  possess, 
and  (b)  so  far  as  the  Presbytery  actually  does  confer  power  by 
appointing  the  Committee. 

The  contrary  of  this,  it  is  true,  is  ingeniously  argued.  The 
Protest  Committee,  several  times  referred  to,  have  made  out  as 
plausible  a  case  in  their  behalf  as  we  are  likely  to  see.  They 
argue  as  follows  : 

“As  it  is  impossible  for  the  Presbyterian  Church  in  the 
United  States  (of  America)  to  perform  its  functions  directly  it 
must  commission  some  individuals  to  represent  it.  As  it  is 


37 


equally  impossible  for  the  whole  Church  to  select  and  commis¬ 
sion  such  individuals,  the  duty  of  so  doing  is  properly  relegated 
to  the  particular  Presbytery  within  whose  bounds  the  offence 
was  alleged  to  be  committed,  which  designates  and  elects  them 
as  a  Committee  of  Prosecution,  in  the  name,  not  of  the  1  res- 
bytery,  but  of  the  Church  at  large,  and  sets  them  aside  for  that 
definite  purpose.  For  the  time  being,  therefore,  the  Committee 
so  appointed  is  separate  from  the  Presbytery,  and  independent 
of  it  in  the  matter  in  hand,  except  as  to  the  orderly  arrange¬ 
ments  and  processes  of  trial ;  responsible  no  longer  to  the  Pres¬ 
bytery,  but  to  the  Church  at  large,  in  whose  name  and  behalf 
it  must  conduct  the  case.  It  is,  in  this  respect,  unlike  any  other 
committee  appointed  by  the  body  ;  is  not  in  proper  sense  the 
‘  creature  ’  of  the  Presbytery,  but  the  creature  of  the  Presbyte¬ 
rian  Church  of  the  United  States  (of  America) ,  onl^y  desig¬ 
nated  as  to  its  component  membership  by  the  Presbytery, 
which  in  such  designation  or  appointment  is  acting  as  the  agent 
of  the  larger  body  ;  and  it  is  not  subject  to  the  will  of  the 
Presbvtery  except  for  the  maintenance  of  constitutional  order, 
so  long  as  the  case  continues.  It  takes  the  place  of,  and  be¬ 
comes,  both  de  jure  and  de  facto  an  c  original  party.’  ” 

The  reason  assigned  for  this  extraordinary  situation  is  the 

following : 

“  A  party  accused  must  have  a  party  accusing,  each  maintain¬ 
ing  its  side.  A  process  conducted  before  a  Presbytery  must, 
therefore,  have  its  two  original  parties.  But  as  the  Presbytery 
becomes  the  court  to  consider,  try  and  decide  the  case,  it  cannot 
be  one  of  those  parties.  Its  position  in  the  trial  must  be  that 
of  strict  impartiality.” 

It  is  for  this  purpose,  then,  of  enabling  the  Presbytery  to 
maintain  this  strict  impartiality,  which  belongs  to  it  as  a  court, 
that  the  astounding  restrictions  are  thrown  about  it,  and  the 
astounding  abridgements  of  its  powers  insisted  on,  which  aie 
contained  in  this  theory.  For  unsupported  theory  it  is.  It  is 
nowhere  hinted  at  in  the  Book,  much  less  declared,  that  the  Com¬ 
mittee  of  Prosecution  is  selected  “  in  the  name,  not  of  the  Pies- 
bytery,  but  of  the  Church  at  large,”  that  it  represents,  “  not  the 
Presbytery,  but  the  Church  at  large,”  and  that  it  is  set  aside  foi 
that  definite  purpose.”  It  is  nowhere  hinted  at,  much  less 


38 


declared,  tliat  the  Committee  so  appointed  is  f 01  tlie  time  being 
“  separate  from  tlie  Presbytery,  and  independent  of  it,  in  the 
matter  in  hand,  except  as  to  the  orderly  arrangements  and  pro¬ 
cesses  of  trial  ”  ;  that  it  is  “  responsible  no  longer  to  the  Pres¬ 
bytery,  but  to  the  Church  at  large”  ;  that  “  it  is  in  this  respect 
unlike  any  other  committee  appointed  by  the  body  ’ ;  that  it 
“is  not  in  any  proper  sense  the  ‘ creature ’  of  the  Presbytery, 
but  the  creature  of  the  Presbyterian  Church  in  the  United 
States  (of  America) ;  only  designated  as  to  its  component  mem¬ 
bership  by  the  Presbytery,”  and  that  “it  is  not  subject  to  die 
will  of  the  Presbytery,  except  for  the  maintenance  of  constitu¬ 
tional  order.”  Nothing  of  this  is  stated  in  the  Book.  The 
Book  knows  nothing  of  any  distinction  between  “  creating  ”  a 
committee,  and  “  designating  a  committee  as  to  its  component 
membership,”  and  all  the  rest.  It  is  a  series  of  a  priori  deduc¬ 
tions  j  there  is  no  countenance  for  them  in  Sections  10  and  11, 
and  if  not  there,  then  certainly  nowhere. 

The  labored  explanation  given  of  the  reason  why  the 
Church  at  large  relegates  its  appointing  function  to  the  Pres¬ 
bytery  is  an  imaginary  construction,  since  the  Book  assigns  no 
such  function  to  the  Church  at  large,  and  says  nothing  of  any 
necessity  laid  upon  the  Church  of  “  commissioning  some  indi¬ 
viduals  to  represent  it.”  In  fact,  just  here  is  one  great  fallacy. 
There  is  really  no  such  necessity  and  no  propriety  in  any  such 
action,  for  the  proper  representative  of  the  Church  at  large  is 
already  constituted,  viz.,  the  Presbytery.  But  it  is  said  the  Pres¬ 
bytery  cannot  represent  the  Church  at  large,  for  it  must,  as  a 
court,  be  impartial.  We  shall  notice  this  point  more  fully  in  a 
moment.  Observe  now  only  this  :  that  this,  if  pressed,  would 
prove  too  much.  For  if  the  Church,  as  a  whole,  has  in  this 
matter  any  power  of  appointment  which  it  may  delegate,  it 
can  have  it  only  as  prosecutor ;  if  the  Presbytery  “  in  such 
designation  or  appointment  is  acting  as  the  agent  of  the  large 
body,”  it  is  acting  as  the  agent  of  the  prosecutor,  and  the  very 
infelicity  which  it  is  sought  to  avoid  is  present  in  the  means 
taken  to  avoid  it,  with  this  immense  aggravation  of  the  evil, 
viz.:  that  if  the  Presbytery  appoints  by  virtue  of  its  own  gen¬ 
eral  powers  (in  accordance,  of  course,  with  the  provisions  of 
Section  11),  it  can  then,  in  case  it  becomes  convinced  that  the 


39 


condemnation  is,  after  all,  needless,  and  prosecution  therefore 
a  real  wrong  to  tlie  accused  party,  undo  all  it  lias  done,  and 
thus  make  some  slight  reparation  to  the  needlessly  accused, 
while  if  it  acts  (in  theory)  at  the  behest  of  the  Church  as  a 
whole,  and  thus  constitutes  a  committee  over  which  it  has  no 
further  control,  it  is  totally  unable  to  do  anything  to  save  the 
accused  party  from  continued  litigation  in  case  it  shall  become 
convinced  that  there  is  no  sufficient  ground  for  adverse  judicial 
action.  This  is  impartiality  with  a  vengeance — an  impartiality 
which  works  always,  and  only  to  the  disadvantage  of  the  very 
accused  party,  whom  the  laws  of  all  civilized  states,  and 
presumably  of  all  Christian  churches,  are  framed  to  protect  in 
every  possible  right. 

The  matter  will  become  perfectly  clear  if  we  observe  how 
it  was,  as  a  matter  of  fact  and  of  history,  that  Sections  10  and 
11  came  into  the  Book  of  Discipline.  The  assertion  that  the 
Presbyterian  Church  in  the  United  States  of  America,  finding 
it  impossible,  in  this  instance,  “  to  perform  its  functions  direct¬ 
ly,”  u  must  commission  some  individuals  to  represent  it,’  is  like 
the  social  compact  theory  of  government,  an  excellent  repre¬ 
sentation  of  the  way  matters  occurred,  if  only  they  had  actually 
occurred  in  this  way.  The  explanation  forgets  that  the  u  Com¬ 
mittee  of  Prosecution  ”  was  not  created  in  our  Church  by  the 
Revised  Book  of  1884-85.  For  several  generations  it  has  been 
familiar  to  our  procedure.  At  least,  as  long  ago  as  1821,  the 
General  Assembly  adopted  and  recommended  to  Presbyteries 
the  “  General  Rules  for  Judicatories, ”of  which  Rule  XL11.  pro¬ 
vides  for  a  Committee  of  Prosecution.  The  Rule  is  not  man¬ 
datory,  but,  in  fact,  Committees  of  Prosecution  were  frequently 
appointed  under  it,  and  performed  functions  similar  to  those 
assigned  to  such  Committees  by  Section  11  of  the  Revised 
Book.  The  differences  in  the  provisions  will  be  noticed  pres¬ 
ently.  But  the  Committee  of  Prosecution  was  actually  a  fea¬ 
ture  of  our  courts  long  before  the  Presbyterian  Church  in  the 
United  States  of  America  was  constituted  the  prosecutor,  and 
an  original  party,  when  process  is  initiated  by  a  judicatory. 

What  took  place  at  the  revision  of  the  Book  of  Discipline  was 
this : — the  habitual  procedure  of  our  Courts  in  the  matter  of 
Committees  of  Prosecution  was  taken  from  the  General  Rules 


40 


for  Judicatories  and  made  a  requirement  in  the  new  Book  of 
Discipline.  The  Buie  stands  unaltered,  so  that  we  have  now, 
within  the  same  covers,  the  requirement  of  the  Book  of  Dis¬ 
cipline,  Section  11,  and  the  unchanged  source  from  which  it 
came.  In  one  important  aspect  the  two  are  unlike.  The  Buie 
allows  a  Committee  of  Prosecution  in  “  cases  of  process  on  the 
ground  of  general  rumor,  where  there  is,  of  course,  no  par¬ 
ticular  accuse  this  is  what  the  old  Book  of  Discipline  called 
“  Common  Fame  ”  (Chap,  iv.,  Sections  2,  3).  For  this  are 
now  substituted  the  cases  “  when  the  prosecution  is  initiated 
by  a  judicatory,”  in  which,  according  to  another  section,  the 
Presbyterian  Church  in  the  United  States  of  America  is  re¬ 
garded  as  the  prosecutor.  The  Presbyterian  Church  in  the 
United  States  of  America  thus  takes  the  position  formerly  held 
in  our  system  by  Common  Fame  or  General  Bumor.  The  old 
and  constant  element  in  the  procedure  is  the  Committee  of 
Prosecution,  the  new  element  is  the  Presbyterian  Church  in 
the  United  States  of  America.  It  is  thus  perfectly  evident 
that  the  framers  of  the  new  Book  did  not  begin  with  the 
Church  at  large,  and  derive  therefrom  the  notion  of  a  Commit¬ 
tee  of  Prosecution  to  represent  the  Church  ;  they  started  with 
the  Committee  of  Prosecution  as  a  familiar  fact  in  Presbyterian 
usage,  and  provided  it  with  a  new  background  by  calling  the 
Church  at  large  the  prosecutor.  The  functions  of  the  Com¬ 
mittee  of  Prosecution  do  not  flow  originally  and  directly  from 
the  conception  of  the  Church  at  large,  but  the  Church  at  large 
is  now  brought  in  as  a  new  feature,  for  a  purpose  entirely  dis¬ 
connected  from  the  primary  purpose  of  the  provision  for  Pros¬ 
ecuting  Committees. 

I  have  it  on  the  authority  of  two  distinguished  members  of 
the  Committee  on  the  Bevision  of  the  Book  of  Discipline,  that 
that  Committee  inserted  the  provision  that  the  accusation  should 
be  brought  in  the  name  of  the  Presbyterian  Church  in  the 
United  States  of  America  “to  avoid”  (I  quote)  the  old  and  un¬ 
satisfactory  provision  which  made  “  Common  Fame  ”  the  ac¬ 
cuser.  It  was  said  that  c  Common  Fame  was  a  lying  jade.’  ” 

The  change,  however,  conferred  no  new  status  upon  a  Com¬ 
mittee  of  Prosecution.  The  Committee  was  not  an  “  original 
party  ”  when  it  represented  (through  the  action  of  Presbytery) 


41 


Common  Fame  or  General  Rumor.  No  more  is  it  when  it  rep¬ 
resents  (through  the  Presbytery)  the  Church  at  large.  . 

Nor  is  the  Presbytery  deprived  of  its  status  or  function,  llie 
new  provision  is  simply  a  becoming  and  dignified  form  of  no¬ 
menclature  to  represent  tbe  Church  at  large  as  the  original  party, 
behind  Session,  Presbytery  or  Synod,  making  the  process  con¬ 
tinuous  if  it  pass  from  one  court  to  another.  . 

It  will  be  seen  that  “  the  Presbyterian  Church  m  the  U  mted 
States  of  America,”  while  in  this  connection  a  convenient  anc 
perhaps  useful  personage,  is  not  required,  and  never  was  re¬ 
quired,  in  order  to  secure  the  ends  sought  in  the  appointment  of 

a  Committee  of  Prosecution.  . 

But  all  the  talk  made  about  securing  the  impartiality  ot  tlie 

Presbytery  as  a  court  by  the  introduction  of  the  Church  at 
large  as  prosecutor  is  made  in  view  of  a  purely  theoretical 
situation.  The  attitude  of  mind  of  members  of  a  Presbytery  to 
a  case  before  them  is  not  thereby  in  fact  altered  at  all.  At 
best,  it  is  not  felicitous  that  the  Presbytery  may  act  as  grand 
jury  before  it  sits  in  judgment.  The  evil  is  lessened  by  the 
requirement  that  a  Committee  of  its  own  members  (why  this 
restriction,  by  the  way,  if  it  is  acting  as  a  mere  agent  of  the 
whole  Church  ?)  shall  be  appointed  to  conduct  the  prosecution, 
but  it  makes  absolutely  no  practical  difference  to  the  menta 
attitude  of  Presbytery  as  a  court,  whether  Presbytery  appoints 
this  Committee  as  a  body  with  executive  functions  of  its  own, 
or  as  the  mere  agent  of  the  Presbyterian  Church.  The  same 
persons,  holding  the  same  views,  and  having  the  same  likes  and 
dislikes,  act  in  either  case,  and  act  in  the  same  way ;  and  win  e 
they  undoubtedly,  as  far  as  they  are  worthy  ministers  and 
elders,  try  to  be  impartial,  it  is  no  easier  to  be  so  because  they 
can  say  to  themselves,  “  This  Committee  we  have  appointed  in 
the  name  of  the  Presbyterian  Church,  and  not  in  the  name  o 
this  Presbytery.”  It  may,  indeed,  be  seemly  that  the  whole 
Church  should  be  called  the  prosecutor;  it  gives  formal  con¬ 
tinuity  to  a  case  if  carried  before  higher  courts ;  but  the  rea 

situation  is  not  changed.  .  _  .._ 

The  simple  inference  and  natural  interpretation  ot  all  tins  is . 

that  the  Presbytery  represents  the  Presbyterian  Church  m  any 
given  case  as  prosecutor,  but  delegates  the  function  tins 


42 


acquired  to  a  Committee  of  Prosecution,  in  order  to  leave  itself 
free  to  act  as  a  court,  not  thereby  relinquishing  permanently 
any  of  its  inherent  power  over  its  Committee,  and  resuming  at 
will  the  active  exercise  of  such  power. 

It  follows  that,  while  the  Presbyterian  Church  in  the  United 
States  of  America  is  formally  the  prosecutor  and  an  original 
party,  the  Presbyterian  Church  was  on  the  4th  of  November, 
1891,  represented  in  the  Scotch  Church,  New  York,  by  the 
Presbytery  of  New  York,  and  not  by  a  Committee  of  the 
Presbytery.  The  Committee  appointed  “  to  prepare  and 
arrange  the  proceedings  appropriate  in  the  case  of  Dr.  Briggs,’’ 
even  if  a  Prosecuting  Committee  according  to  Section  11,  had 
no  standing  or  right  except  such  as  the  Presbytery  gave  it. 

It  was  not  an  original  party,  nor  did  it  represent  an  original 
party,  except  so  far  as  the  Presbytery,  the  real  representative, 
and  not  mere  instrument,  of  the  Presbyterian  Church  in  the 
United  States  of  America,  committed  to  it  certain  of  its  own 
representative  functions,  doing  through  the  Committee  what  it 
could  not  becomingly  do  of  itself.  But  the  Presbytery,  and 
the  Presbytery  alone,  was  the  direct  fountain  of  all  the  Com¬ 
mittee’s  powers. 

The  third  point  decided  by  the  Moderator,  and  sustained  by 
Presbytery,  was  this : 

u  3.  That  the  Committee,  as  an  original  party,  was  virtually 
and  practically  independent  of  the  Presbytery.” 

On  this,  your  complainants  make  the  following  representa¬ 
tions  : 

“  3.  Every  committee  appointed  by  Presbytery  is  subject  to 
the  control  of  Presbytery,  otherwise  the  creature  is  greater  than 
the  body  creating  it,  the  sovereignty  of  Presbytery  over  its 
members,  its  committees,  and  all  the  interests  committed  to  it 
by  the  laws  of  the  Church,  is  seriously  impaired,  and  an  undue 
power  is  placed  in  the  hands  of  a  few  persons. 

“  4.  It  was  therefore  competent  for  the  Presbytery  to  dis¬ 
charge  the  Committee  on  dismissing  the  case  against  Dr.  Briggs. 
But  a  motion  to  this  effect  was  ruled  out  of  order  by  the  Mod¬ 
erator,  on  the  ground  of  the  Presbytery’s  action  in  sustaining 
him,  as  cited  above  (cf.  also  Complaint  2). 


43 


«  5.  The  Committee,  being  a  creature  of  Presbytery,  had  no 
right  to  appeal  from  the  decision  of  Presbytery  in  voting  by  a 
large  majority  (94  to  39)  to  dismiss  the  aforesaid  case.  T  et 
this  the  action  of  Presbytery  in  sustaining  the  ruling  of  the 
Moderator,  as  above,  permitted  them  to  do. 

“  6.  By  this  appeal  of  the  Committee,  the  Presbytery  is 
placed  in  the  absurd  position  of  being  compelled  to  defend  its 
own  action  in  dismissing  a  case,  not  against  the  complaint  of  any 
individual,  nor  against  the  appeal  of  one  who  has  suffered 
personal  detriment  by  a  judicial  decision,  but  against  a  Com¬ 
mittee  which  was  appointed  by  and  derives  all  its  authority 
from  the  very  body  against  whose  judgment  it  now  proposes 
to  maintain  its  opinion.  This  anomalous  situation  results  from 
the  action  of  the  Presbytery  in  sustaining  the  Model atoi  as 
above.” 

To  some  ecclesiastical  body  the  Committee  must  be  subject 
and  answerable.  It  is  claimed  that  this  body  is  not  the  appoint¬ 
ing  judicatory,  but  the  Church  as  a  whole.  We  have  seen  that 
there  is  no  trace  of  this  theory  in  any  statement  of  the  Book. 
Granting  it,  however,  for  the  moment,  as  a  valid  inference,  h 
involves  another  inference,  which  the  appellants  and  theii 
friends  have  overlooked.  If  the  Prosecuting  Committee  must 
not  only  be  actually  appointed  by  some  ecclesiastical  body,  and 
must  be  subject  and  answerable  to  some  ecclesiastical  body— -be 
subject,  therefore,  to  direction  or  to  discharge,  in  the  discretion 
of  that  body — the  same  reasons  which  make  it  necessary,  on 
the  hypothesis,  for  the  Church  as  a  whole  to  delegate  its  ap¬ 
pointing  power  to  a  Presbytery  make  it  necessary  that  it  dele¬ 
gate  its  power  of  control  also  to  the  Presbytery.  Otliei'wise, 
the  Prosecuting  Committee  is,  for  a  long  period  at  least,  totally 
irresponsible,  autocratic,  an  absolute  oligarchy,  with  reference 
to  important  matters  of  government  and  discipline.  In  what 
absurdities  this  would  land  us  it  is  easy  to  see.  One  or  two  of 
them  will  presently  be  noticed.  But  observe  now  that  the 
whole  assertion  of  the  responsibility  of  the  Committee  of  Pros¬ 
ecution  to  the  Church  as  a  whole,  and  its  independence  of  Pres¬ 
bytery,  rests  upon  the  airiest  of  foundations.  TV  e  are  asked  to 
believe  that  our  Book,  which  so  carefully  defines  the  rights 
of  the  several  judicatories,  in  legislating  for  a  Church  always 


u 


jealous  of  the  principle  of  local  self-government,  and  especially 
prompt  to  resist  any  infringement  upon  the  rights  of  Presby¬ 
teries,  through  the  agency  of  which  alone  the  higher  judicato¬ 
ries  can  be  constituted,  which  in  judicial  process  have  reserved 
to  themselves  the  right  first  to  bring  their  own  members  before 
their  own  Ear — we  are  asked  to  believe  that  our  Book  ties  the 
hands  of  the  Presbyteries  in  regard  to  an  important  part  of 
process,  and  puts  them  absolutely  in  the  power  of  a  Committee 
of  their  own  naming,  without  a  line  of  statement  to  this  effect, 
that  a  constitutional  right  of  far-reaching  consequence,  and  a 
barrier  to  excessive  centralization  can  be  infringed  upon,  and 
in  a  particular  case  entirely  removed,  without  any  specif  c  pro¬ 
vision,  and  merely  through  a  series  of  labored  and  ingenious 
inferences  which  are  clearly  in  the  interest,  not  of  peace  and 
the  proper  Christian  liberty  of  which  we  boast,  but  of  litiga¬ 
tion  and  individual  oppression !  The  mere  statement  of  the 
theory  refutes  it. 

Those  who  hold  to  it  have  not  sufficiently  considered  the 
bearing,  in  the  present  law  and  practice,  of  the  former  rule  and 
usage  concerning  Committees  of  Prosecution.  We  have  seen 
that  the  Committee  of  Prosecution  of  the  present  Book  of  Dis¬ 
cipline  is  the  old  Committee  of  Prosecution  of  the  General 
Buies  for  Judicatories.  That  old  Committee  of  Prosecution 
was  subject  to  its  appointing  judicatory.  No  one  thought  of 
permitting  it  to  act  independently  of  that  judicatory.  When 
the  judicatory  acquitted,  or  dismissed  the  case,  the  Committee 
of  Prosecution  had  no  further  function  and  was  discharged. 
The  general  rumor  that  was  behind  it  gave  it  no  right  to  exist 
and  act  after  the  Presbytery  had  determined  that  it  should  cease 
acting.  “  No  one  ever  thought  of  saying  ” — to  quote  again 
from  a  member  of  the  Bevision  Committee — “  that  a  Committee 
representing  Common  Fame  was  independent  of  the  judicatory 
because  it  (the  judicatory)  was  not  Common  Fame.  And  no 
more  did  any  one  think  of  the  independence  of  a  Committee 
representing  a  body  acting  for  the  Presbyterian  Church.  At 
least  no  one  spoke  of  such  a  thing,  as  I  am  assured  by  Dr. 
- ,  who  fully  agrees  with  me.” 

But  let  us  carry  the  matter  a  step  further.  If,  in  the  appoint¬ 
ment  of  a  Prosecuting  Committee,  the  appointing  power  really 


4-5 


lies  with  the  whole  Church,  and  the  Presbytery  is  merely  “act¬ 
ing  as  the  agent  of  the  larger  body,”  it  is  interesting  to  consider 
what  the  efiect  would  be  if  the  whole  Church,  represented,  let 
us  say,  in  the  General  Assembly,  should  conclude  to  exercise 
its  appointing  power  directly.  Suppose  a  case  in  which  a  Pies- 
bytery  is  directed  by  the  Assembly  to  begin  process.  If  the 
Assembly,  at  the  same  time,  should  direct  the  Presbytei^  to 
appoint  certain  specified  persons  from  among  its  members  to 
act  as  a  Committee  of  Prosecution ;  would  Presbyteries  sub¬ 
mit  to  this  \  Would  it  not  be  clearly  a  usurpation  ?  And  yet 
why  should  it  be  objected  to  if  the  Church  as  a  whole  is  always 
the  direct  source  of  authority  in  such  appointment?  drue, 
Section  11  says  the  initiating  judicatory  shall  appoint :  but  it  is 
quite  as  easy  to  read  into  that  declaration  the  theory  that  the 
Church  at  large,  through  the  General  Assembly,  may  direct  it 
whom  to  appoint,  as  the  theory  that  in  appointing  it  is  acting 
merely  as  the  agent  of  the  Church  at  large,  when  it  designates 
the  Committee  “  as  to  its  component  membership.  Oi,  it 
might  be  maintained,  with  hardly  more  of  absurdity,  that  when 
a  General  Assembly  directed  a  Presbytery  to  try  a  case,  the 
General  Assembly  was  really  the  judicatory  initiating  process, 
and  that  it  might  appoint  a  Committee  of  its  own  members  to 
prosecute  the  case  before  the  Presbytery.  No  doubt  some 
interpretation  of  Section  18  might  be  devised  which  would 
accord  with  this  interpretation!  Is  it  not  evident  that  the  ad¬ 
vocates  of  the  view  upon  which  the  Committee  depends  foi  its 
legal  status  are  demanding  of  the  provision  of  the  Look  which 
makes  the  whole  Church  prosecutor  and  an  original  party,  and 
which  is,  at  best,  only  a  convenient  legal  fiction,  an  amount  of 
concrete  service  which  it  is  in  no  way  able  to  render,  and  which 
it  cannot  be  asked  to  render  without  exposing  presbyteries  to 
serious  humiliation  ? 

The  only  view  consistent  with  the  general  powers  of  Presby¬ 
teries,  the  only  one  conserving  these  with  their  proper  safe¬ 
guards,  the  only  one  to  which  the  language  of  Sections  10  and 
11  lends  any  real  countenance,  is  the  view  that  the  Committee 
of  Prosecution,  appointed  by  Presbytery,  is  a  creature  of  Pres¬ 
bytery,  responsible  to  Presbytery  for  the  proper  discharge  o 
the  duties  entrusted  to  it,  and  subject  to  Presbytery ,  whic  i 


46 


may  direct  it  in  tlie  performance  of  those  duties,  and  may  dis¬ 
charge  it  when  convinced  that  its  work  is  properly  at  an  end. 
Where  we  should  be  landed  by  the  contrary  view  will  be  clear 
from  a  few  illustrations.  Suppose  a  Presbytery,  after  initiat¬ 
ing  a  process  and  carrying  it  through,  become  convinced  that 
it  had  no  real  ground  and  votes  unanimously  to  acquit  the 
accused  party.  On  the  theory  of  the  appellants,  the  Prosecut¬ 
ing  Committee  may,  in  its  own  discretion,  uninfluenced  by  the 
action  of  Presbytery,  carry  the  case  to  higher  courts.  And  yet 
the  Presbytery  is  the  sole  official  representation  of  the  whole 
Church  whose  voice  can  be  heard  in  the  case.  It  is  monstrous 
that  when  the  body,  whose  voice,  until  overruled,  must  stand 
as  the  voice  of  the  Church,  lias  spoken,  the  Church,  through  a 
a  Committee  appointed  by  the  body  which  has  rendered  a  ver¬ 
dict  without  dissent,  should  appear  as  taking  action,  opposing 
that  verdict !  If  the  Synod  should  unanimously  sustain  the 
Presbytery,  the  Prosecuting  Committee  need  not  be  affected  or 
influenced  thereby !  One  does  not  soon  see  why,  if  the  General 
Assembly  should  unanimously  sustain  the  Synod,  the  Prosecut¬ 
ing  Committee  might  not,  as  such,  appeal  (according  to  this 
theory)  to  the  civil  courts,  if  it  judged  that  the  Constitution  of 
the  Presbyterian  Church  had  been  violated  in  the  verdict ; 
appeal,  not  as  individuals,  but  as  a  Committee !  It  is  not  credi¬ 
ble,  it  is  not  conceivable,  that  the  Church,  in  framing  the  Book 
of  Discipline,  ever  intended  to  lodge  such  enormous  power  in 
the  hands  of  a  few  persons.  We  say  “a  few  persons,”  but  in 
fact  the  Prosecuting  Committee  may  consist  of  a  single  indi¬ 
vidual,  and  there  is  no  reason  whatever  why  we  might  not,  if  the 
doctrine  advocated  be  established,  see  one  contentious  man 
leading  the  whole  Presbyterian  Church  a  long  and  weary  dance 
through  stage  after  stage  of  litigation,  which  every  one  but  he 
desired  to  have  arrested,  and  all  in  the  name  of  the  very 
Church  for  whose  turmoil  he  would  be  solely  responsible,  and 
as  its  official  representative. 

Let  us  suppose  the  court  of  original  jurisdiction  to  be  the 
Session  of  a  particular  church.  This  “  judicatory  finds  it  nec- 
essary,  we  will  say,  u  for  the  ends  of  discipline,  to  investigate” 
dii  alleged  offense  ”  (Book  of  Discipline  §  6).  Suppose  the 
Session  to  consist  of  the  minister  and  four  elders.  A  Committee 


47 


of  Prosecution  must  be  appointed.  One  elder  is  designated 
for  tlie  purpose.  The  accused  church  member  is  tried.  It 
may  be  a  woman.  .As  the  result  of  trial,  the  Session 
votes  unanimously  to  aecpiit.  Put  the  Committee  of  Prose¬ 
cution — a  committee  of  one — is  pugnacious,  or  vindictive, 
or  has  morbidly  conscientious  doubts  about  the  veidict. 
That  one  man  may,  and  even  must,  appeal  to  the  Pres¬ 
bytery,  for  he  represents  the  entire  Church,  and  the  Church 
lias  appointed  him  to  prosecute,  and  only  the  Church  can 
dispense  him  therefrom.  If  the  Presbytery  goes  againsi  him 
— even  unanimously — he  may,  and  even  must,  appeal  to  the 
Synod.  If  the  Synod  decides — even  unanimously— against 
him,  he  appeals  to  the  General  Assembly.  It  is  perfectly  con¬ 
ceivable  that  an  unanimous  vote  of  the  General  Assembly 
against  him  might  be  the  termination  of  his  career  as  Commit¬ 
tee  of  Prosecution,  in  the  course  of  which  he  might  have  ex¬ 
hausted  the  time  and  patience  of  four  judicatories,  destroyed 
the  peace  and  permanently  damaged  the  reputation  of  an  in¬ 
nocent  woman,  and  made  himself  and  the  Church  that  sanc¬ 
tioned  him  and,  on  the  theory,  compelled  him  to  play  this  part, 
a  laughing  stock  to  the  world,  and  an  occasion  of  deep  grief  to 
the  godly  in  the  earth. 

Does  any  one  here  present  believe  that  an  interpretation  of  the 
Constitution  which  could  permit  such  a  thing  to  occur  is  an  in¬ 
terpretation  either  tolerable  or  true  ? 

Another  illustration  is  this.  Suppose  a  Session  or  a  Pres- 
btery  votes  to  condemn,  and  the  defendant  appeals  \  suppose, 
however,  it  becomes  evident  that  the  Prosecuting  Committee 
is  lukewarm  or  incompetent.  Has  the  judicatory  no  light  to 
insist  upon  its  taking  vigorous  measures  ?  May  not  the  com¬ 
mittee  be  instructed  ?  May  it  not,  if  it  persist  in  carelessness 
or  prove  recalcitrant,  be  disharged  and  a  new  one  appointed 
that  shall  officially  represent  the  judicatory  ?  Shall  justice  fail 
because  one  or  more  members  of  the  judicatory  override  the 
judicatory  itself?  It  is  monstrous  that  a  Session  or  Pres¬ 
bytery  should  be  suffered  to  lie  helpless  in  the  hands  of  one 

man  or  five  men. 

Or  we  may  look  at  the  matter  in  another  way.  If  a  Com¬ 
mittee  of  Prosecution  directly  represents  the  Presbyteiian 


48 


Church  at  large,  is  it  not  then  under  obligation  to  prosecute 
until  the  Church  at  large  bids  it  cease  ?  What  right  has  a 
Prosecuting  Committee  to  any  judgment  at  all  of  its  own  (  It 
is  appointed  to  prosecute,  in  whatever  court.  It  is  faithless  to 
its  trust  if  it  do  not  prosecute.  Its  members  may  become  con. 
vinced  that  prosecution  is  unjust.  Still  they  must  continue  to 
prosecute.  The  assumption  of  the  duties  of  a  Prosecuting 
Committee  involves  the  persistence  in  the  work  of  prosecution 
to  the  bitter  end,  without  any  regard  to  individual  opinion. 
The  only  escape  from  the  position  that  such  a  Committee  has 
excessive  power  is  in  the  view  that  it  has  no  power  at  all,  that 
it  is  a  mere  machine  in  the  hands  of  a  higher  authority,  the 
Church  is  a  whole,— an  automaton,  wound  up  by  the  Presby¬ 
tery,  but  working  thereafter  by  a  compelling  necessity,— pros¬ 
ecuting,  prosecuting,  prosecuting.  Evidently  this  was  not  the 
view  of  that  member  of  this  Committee  who  called  upon  Dr. 
Briggs  a  few  days  before  the  meeting  at  which  the  charges 
were  presented,  and  endeavored  to  persuade  Dr.  Briggs  to 
appear  before  the  Committee  and  make  such  explanations  as 
would  relieve  them  of  the  necessity  of  making  charges.  If  this 
Committee  was  ever  a  Committee  of  Prosecution  it  was  so  at 
the  time  of  that  call,  and  in  that  case  it  was  at  that  time  respon¬ 
sible  directly  to  the  Presbyterian  Church  in  the  United  States 
of  America.  It  would  appear,  then,  that  this  kindly  meant 
visit  was  really  a  breach  of  trust,  for  the  Committee  was,  on 
the  theory,  responsible  to  the  Church  at  large  simply  for  pros¬ 
ecuting.  Nothing  else  would  have  been  permissible.  Nothing 
else  can  at  any  time  be  permissible  until  the  whole  Church 
direct  the  Committee  to  cease  prosecuting.  This  involves,  of 
course,  the  obligation  to  bring  every  case  initiated  by  a  judica¬ 
tory  before  the  General  Assembly.  Take  the  case  of  judicial 
proceedings  by  a  session,  already  proposed  by  way  of  illustra¬ 
tion.  It  was  suggested  that  the  one  member  of  session  who 
should  be  appointed  to  conduct  the  prosecution  before  the 
session  might  be  pugnacious,  vindictive  or  morbidly  zealous. 
But  it  now  appears,  when  we  examine  the  matter  thoroughly, 
that  he  may  be  the  most  amiable  of  men,  and  the  most  desirous 
to  have  the  matter  end  with  the  session,  and  go  no  farther. 
Not  only  may  the  Session  be  unanimously  in  favor  of  acquitting 


49 


the  accused  person,  but  the  prosecutor  may  be  so  too ;  he 
may  be  full  convinced  of  that  person’s  innocence,  and  of  the 
injustice  of  further  proceedings ;  he  may  be  thoroughly  per¬ 
suaded  that  previous  injury  to  the  cause  of  Christ  will  result 
from  allowing  the  matter  to  get  beyond  the  Session.  But  he 
is  responsible  to  the  whole  Church,- not  for  using  his  best 
judgment  in  the  case,  but  for  prosecuting,  only  prosecuting. 
No  case  can  be  taken  up  by  a  session  without  its  going  up  even¬ 
tually  to  the  General  Assembly.  “  Every  case  initiated  by  a 
judicatory  shall,  if  the  accused  be  acquitted,  be  taken  through 
the  higher  courts,  and  shall  under  no  circumstances  be  regarded 
as  finally  adjudicated  until  acted  upon  by  the  General  As¬ 
sembly  this  would  be  the  proper  interpretation  of  the  Book 
formulated  into  a  rule,  if  the  claims  put  forth  in  behalf  of 
Committees  of  Prosecution  should  be  sustained.  It  may  be 
that  this  is  absurd.  If  so,  does  it  not  prove  that  the  claims  are 
absurd,  and  is  it  not  absurd  to  suppose  that  our  Book,  framed  by 
rational  men,  countenances  any  such  absurdity  i 

Before  closing,  allow  me  to  dwell  a  moment  upon  another 
point.  Modern  jurisprudence  lias  for  one  of  its  principles  the 
careful  guarding  of  all  the  possible  rights  of  an  accused  person, 
and  the  careful  restriction  of  all  the  powers  of  a  prosecutor. 
No  person  may  be  put  in  jeopardy  twice  for  the  same  of¬ 
fence.  Thus  it  would  be  utterly  at  variance  with  the  whole 
tendency  of  our  time  in  matters  of  law,  if  a  Committee 
of  Prosecution,  which  never  acts  on  the  ground  of  persona 
injury,  but  simply  as  the  representative  of  an  ecclesiastical 
body,  should  possess  the  right  of  appeal  against  the  decision  of 
such  a  body.  That  would  be  wantonly  to  incite  and  even  com¬ 
pel  the  repeated  jeopardizing  of  one  already  declared  innocent 
If  that  were  the  intention  of  our  Book  of  Discipline  it  wouk 
be  a  flagrant  violation  of  the  spirit  of  Christianity.  It  would 
place  the  law  of  the  Presbyterian  Church  on  a  plane  of  severity 
and  cruelty  abandoned  long  ago  by  the  practice  of  every 
civilized  nation.  It  would  make  Presbyterian  law  an  instru¬ 
ment  of  oppression  and  not  of  protection.  It  would  lead  to  con¬ 
tempt  for  the  law  without  the  Church  and  within  it.  It  is  not  to 
be  believed  that  any  such  provision  would  be  inserted  in  any 
Christion  lawbook.  Only  the  utmost  explicitness  could  con- 


50 


vince  Christian  men  that  it  is  a  fact,  and  would  then  irresistibly 
arouse  an  indignation  that  would  speedily  sweep  the  evil  thing 
away.  In  the  absence  of  such  explicitness,  an  interpretation 
involving  such  harshness  cannot  be  tolerated.  It  cannot  be  the 
true  one,  because  it  utterly  violates  our  sense  of  right,  and  who 
of  us  will  impute  such  a  violation  to  the  Church  which  adopted 
this  Book  of  Discipline  ?  It  is  a  shame  to  us,  if  we  accuse  the 
Church  of  encouraging  litigation  and  oppression,  on  the  basis 
of  inferences  from  certain  statements  of  the  Book  which  admit 
equally  well,  and  even  better,  of  a  more  Christian  interpretation. 

The  positive  doctrine  of  the  Book  as  to  the  power  of  a 
Prosecuting  Committee  seems  to  be  this  :  A  Prosecuting  Com¬ 
mittee  is  appointed  by  a  Presbytery  (supposing  the  process  to 
be  there  initiated)  and  entrusted  with  certain  functions  inherent 
in  Presbytery,  which  it  is  more  seemly  and  conducive  to 
justice  that  the  Presbytery  should  discharge  through  a  commit¬ 
tee  ;  the  Committee  can  have  no  greater  powers  than  the  Book 
confers  upon  the  Presbytery;  all  Committees  appointed  by 
Presbytery  being  Committees  of  the  Presbytery,  and  subject 
t°  discharge  at  the  will  of  the  Presbytery.  IS1  or  can  any  Com¬ 
mittee  of  Presbytery  do  what  the  Presbytery  has  no  power  to 
do.  But  no  Presbytery,  after  it  has  given  a  verdict,  has  the 
power  to  carry  up  a  case  by  appealing  from  itself,  against  its 
own  decision,  nor  even  by  complaining,  as  a  Presbytery,  of  its 
own  action.  Ho  more  has  it  the  right  of  appealing  from  its 
own  vote  to  dismiss  (even  supposing  that  appeal  might  be 
taken  in  any  circumstances  from  such  a  vote),  or  to  complain 
against  its  own  action  in  dismissal.  And  what  Presbytery  can¬ 
not  do,  no  Committee  appointed  by  it  can  do.  If  the  Presby¬ 
tery’s  decision  be  adverse  to  the  defendant,  and  he  appeals, 
then,  without  special  action  by  Presbytery,  the  Prosecuting 
Committee  takes  charge  of  the  Presbytery’s  case  before  the  ap¬ 
pellate  court.  But  it  seems  certain  that  when  the  Presbytery  in¬ 
itiating  process  decides  favorably  to  the  defendant,  the  prosecu¬ 
tion  drops;  the  Prosecuting  Committee  has  no  further  function. 
It  either  is,  ipso  facto,  discharged,  or  may  be  discharged  by  vote, 
idle  Pi  esbytery  cannot  be  placed  in  the  absurd  position  of  be¬ 
ing  compelled  to  defend  its  own  action,  not  against  the  com¬ 
plaint  of  any  individual  nor  against  the  appeal  of  one  who  has 


51 


suffered  personal  detriment  by  a  judicial  decision,  but  against 
a  Committee  appointed  by  itself  for  a  specific  service,  which 
service  the  Presbytery  regards  as  ended. 


Mr.  Moderator ,  Fathers  and  Brethren  of  the  Synod  : 

Reasons  appearing  to  your  complainants  cogent  have  been 
presented  for  holding  that  the  Committee,  whose  standing  has 
been  discussed,  was  not  appointed  as  a  Committee  of  Prosecu¬ 
tion  under  Section  11  of  the  Book  of  Discipline,  and  was  not 
one  ;  and  also  that  every  Committee  of  Prosecution  appointed 
by  a  judicatory  is  subject  to  that  judicatory,  has  no  right  of 
appeal  against  the  judicatory  that  committed  to  it  its  powers, 
and  maybe  discharged  at  the  pleasure  of  the  judicatory,  since 
the  judicatory  created  it.  You  are  asked  on  those  grounds  to 
decide  a  constitutional  question  of  great  intrinsic  importance 
and  far  reaching  consequences  in  such  a  way  as  to  avoid  the 
centralization  toward  which  we  have  been  rapidly  drifting, 
guard  the  constitutional  privileges  of  the  lower  judicatories, 
and  protect  the  officers  and  members  of  the  Church  in  theii 
sacred  rights.  P  on  are  asked  to  sustain  the  Complaint. 


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